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In Its First 100 Days, The Biden Administration Must Restore The Soul Of Medicaid
No full textPresident-elect Joe Biden will enter office facing exceedingly important first days. Immediately, he must address ongoing health and economic emergencies. A top priority should be steadying and rebuilding Medicaid, the health care safety-net program that covers nearly one-quarter of the population
A Constitutional Moment in Cross-Border Taxation
No full textThe complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.
A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the classification and assignment of specific categories of income to source or residence to allocate taxing rights among states. (Graetz & O\u27Hear, 1997, p. 1074) To determine which state can impose tax on a cross-border transaction, this approach enumerates a menu of taxable income items—such as dividends, interests and royalties—(classification) and then allocates each item to either a home or host state (assignment). Decades later, after World War II, thousands of bilateral double tax treaties emerged to form an intricate bill of rights to that constitution. The startling rise of the treaties widely perceived as hallmarks of stability reveals a surprisingly dynamic material constitution.
Despite the absence of any formal amendment mechanism, the Classification and Assignment Constitution has been remade more than once. Employing constitutional concepts deeply engrained in its legal culture, the United States has mastered the art of both initiating change and preventing it. U.S. policymakers have alternately transformed the Classification and Assignment Constitution and preserved it much as they do with the U.S. Constitution. Understanding the U.S. perspective on wielding constitutional power reveals an important opportunity for long-marginalized states. Simply put, it shows how constitutional power can be seized with nothing more than an idea.
Section 2 introduces the concept of a material constitution. It explains how U.S. policymakers have entrenched norms that have provided stability in the taxation of cross-border transactions over the past century despite the absence of any formal international tax governance structure. It then describes how the resulting constitutional order allows it and others to exercise power to alter that constitutional order.
Section 3 shows that at constitutional moments change can be initiated, revealing how the Classification and Assignment Constitution has been amended. Offering examples ranging from the creation of the Controlled Foreign Corporation a half century ago to the recent European state aid cases, it illustrates the process through which constitutional amendments can be proposed and, on rare occasions, completed.
Finally, section 4 highlights implications of this constitutional order for marginalized states. It urges bold action of the type that Justice Marshall once took to transform the role of the U.S. Supreme Court, granting it primacy in a suddenly remade constitutional order. Reshaping a material constitution, as every U.S. lawyer learns in their earliest days of legal training, requires no formal control at all
Thinking Like a Writer: A Lawyer\u27s Guide to Effective Writing and Editing, Fourth Edition
No full textThinking Like a Writer provides practical advice to help lawyers strengthen their writing skills by “thinking like a writer” as effectively as they already think like a lawyer. The book highlights guiding principles for writing clearly about complicated material and establishing credibility with demanding readers, and then turns those principles into specific techniques that apply to many types of documents and audiences.
Part I introduces the approach and principles that can guide lawyers in “thinking like a writer.” Part II applies the guiding principles to a document’s organization, while Part III applies them to specific types of legal writing: letters, memoranda, and emails; briefs; and judicial opinions. Part IV applies the principles to the smaller scale of paragraphs and sentences. Finally, Part V applies the principles to the editing process, for both self-editing and editing the work of others. Throughout, chapters include many before-and-after examples to demonstrate how writing and editing can be improved by following the advice offered in the book.https://scholarship.law.bu.edu/books/1366/thumbnail.jp
Swords into Plowshares: A Pilgrimage for the CSS Alabama
Get PDFDuring the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations on their own jurisdiction. The saga of the CSS Alabama, the vessel from which the arbitration took its name, provides a narrative as griping in detail as the arbitral proceedings prove meaningful in legal legacy
How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade The tactics that advanced civil rights and gay rights have been put to work against abortion. Will Roe survive?
No full textThe Supreme Court captured its biggest headlines last month not for a decision, but for a case it agreed to review next year: Dobbs vs. Jackson Women’s Health Organization. The case turns on a 2018 Mississippi law banning abortion at 15 weeks, but its impact will likely reach well beyond one state. To uphold Mississippi’s law—which the Court’s conservative majority is expected to do—the Court will have to undo all or part of Roe v. Wade
Extrapolating Lessons from a Master Mentor: What Bob Burdick Taught Me
Get PDFBob Burdick began his career in clinical practice as a student in the clinic at Boston University School of Law in 1970, shortly after the civil clinic had been established as the Legal Aid Program in Hyde Park in 1969. Right out of law school, Bob worked at Greater Boston Legal Services (“GBLS”), he then was hired at BU as a clinical instructor and later promoted to director of what became the Civil Litigation Program in 1979. During the forty years Bob led the civil clinic (now renamed the Civil Litigation and Justice Program), he was the creative and innovative brains behind it, the master mentor, the innovative clinical teacher, the ethical problem solver, the student-centered supervisor, and a generous colleague
Bigotry, Prophecy, Religion, and the Race Analogy in Marriage and Civil Rights Battles: Responding to Commentaries on Who\u27s the Bigot?
Get PDFOne of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I have beneted from engaging with these commentaries and will wrestle with some of the challenges they pose in my future work. In response, I briey addresses some of the cross-cutting themes in the commentaries by putting some of the commentaries in conversation with each other, and I attempt to answer some of the constructive criticism that they offer
Supreme Court to Hear Major Abortion Case
No full textThe U.S. Supreme Court will hear a case Wednesday that has the potential to overturn Roe v. Wade. The case is a challenge to a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. Boston University law professor Linda McClain joins CBSN\u27s Tanya Rivero to discuss
Legacies of Pragmatism
Get PDFPragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School\u27s Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism\u27s impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don\u27t self-consciously characterize themselves in such terms. I also contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition\u27s emphasis on humanistic governance
The Sprawling Problem of Financial Greenwashing
No full textIn June, the Securities and Exchange Commission (SEC) revealed that, in addition to its ongoing work developing climate risk disclosure standards, it was considering ‘requirements for investment companies and investment advisers related to environmental, social and governance (ESG) factors, including ESG claims and related disclosures.’ It’s too early to guess just what form those requirements might take, but this blog-post, which expands on my recent article ‘Market Myopia’s Climate Bubble’, highlights some anticipated challenges and paths for future scholarship and debate