Boston University Law Review最新文献

{"title":"What's a Name Worth? Experimental Tests of the Value of Attribution in Intellectual Property (with C. Sprigman & Z. Burns)","authors":"Christopher Buccafusco","doi":"10.2139/ssrn.2109917","DOIUrl":"https://doi.org/10.2139/ssrn.2109917","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Class Actions, Heightened Commonality, and Declining Access to Justice","authors":"Mary Law School, William, Justice, A. Spencer, spencer","doi":"10.2139/SSRN.2113374","DOIUrl":"https://doi.org/10.2139/SSRN.2113374","url":null,"abstract":"A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are \"questions of law or fact common to the class.\" Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are \"central\" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2012-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67917252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Medias Res","authors":"Larry W. Yackle","doi":"10.1002/9781118351352.wbve1099","DOIUrl":"https://doi.org/10.1002/9781118351352.wbve1099","url":null,"abstract":"It's common in academic circles to distinguish between positive arguments (which describe things as they are) and normative arguments (which prescribe the way things ought to be). The distinction dissolves as soon as accounts of how the world works spill over into justifications for the status quo. That happens a lot, especially in discussions of theory. It happens again in David Strauss' wonderful monograph.1 Strauss offers a succinct exposition of the constitutional system we actually observe, coupled with a powerful explanation of how and why the scheme functions as it does and genuine reassurance that, on the whole, we can and should be satisfied.I am convinced Strauss has all this about right. In the main, I come to praise him. I will make this clear in Part I. We have a living Constitution. We make it up as we go along, according to a frame of reference that both enables and curbs our appetite for change and, into the bargain, holds us together as a people. I do have reservations about some aspects of his case, though, and I will sketch them in Part II. I also wonder what implications Strauss' theory may have for a purely normative question he doesn't address - namely, how an original document should be drafted for the purpose of fostering a living Constitution over time. I offer some thoughts along those lines in Part III.ILegal theorists can't muddle along like real people, operating within the constitutional system, never pausing to reflect on the whole of which they and their actions are a part. Theorists are supposed to explain stuff. They are supposed to connect the dots, or at least to try. Professor Strauss carries this burden as well as anyone writing in the field today. He imposes no deep philosophical concepts on the Constitution; he reads no contested political values into it. Instead, he offers a down-to-earth, objective, and above all wise appraisal of what we are doing and where we may be going. His analysis entails all the judgment, humility, and caution he associates with the common law method on which, in his view, we rely for the living Constitution.The first hundred pages of this book are a tour de force. Strauss initially identifies the challenges the Constitution poses for the evolving American society. He next demolishes the appeal of originalism as a plausible account of our national experience - originalism, at least, in any of its familiar forms. He then introduces common law methodology as a theoretical explanation that better fits the facts. His treatment is sophisticated, yet free of legal jargon (and distracting citations) that can discourage even serious readers. To make his case even more accessible to a general audience, Strauss illustrates the common law method at work in two celebrated contexts - the Supreme Court's incremental development of now-settled principles touching free speech and racial equality. This is a masterful academic achievement. I would not have dreamed that so much crucial ground could ","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1002/9781118351352.wbve1099","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"50711178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Necessary and Proper Clause and Its Legal Antecedents","authors":"J. Manning","doi":"10.2139/SSRN.2852100","DOIUrl":"https://doi.org/10.2139/SSRN.2852100","url":null,"abstract":"This essay reviews The Origins of the Necessary and Proper Clause — a book by Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman. In the book the authors contest the conventional wisdom that there is no firm historical basis for understanding the Necessary and Proper Clause. Professor Natelson contends that the clause picked up incidental powers principles of agency law, including a general requirement of reasonableness and more detailed fiduciary duties of impartiality, good faith, and due care. Professors Lawson and Seidman trace the Necessary and Proper Clause to traditions of English administrative law that imposed “reasonableness” requirements on official decision-makers. Finally, Professor Miller reads the clause in light of analogous language in eighteenth-century corporate charters that reflected a reasonably close means-ends requirement and an anti-discrimination principle. Rather than try to draw any definite conclusions about the meaning of the Necessary and Proper Clause, the essay examines, more generally, how to make sense of the nitty-gritty details of the private or public law backgrounds of an important constitutional clause. First, starting from the premise that interpreters should ask what legal conventions a “reasonable” lawmaker might be expected to know, the essay explains why we might care about the private or public law backdrops to the clause even if we have no proof that any of those frameworks subjectively influenced a constitutionally sufficient majority of ratifiers. Second, the essay differentiates, for interpretative purposes, between adopting a term of art and merely borrowing an off-the-rack legal construct from a particular legal context. When drafters borrow a widely used legal construct (such as an incidental powers clause), it may not make sense to import all of its associated obligations into a new and different area of law, especially when the same type of construct is common to many diverse legal frameworks. Third, the essay suggests a way for thinking about the burden of persuasion when legal scholars uncover lost constitutional meanings, as the book does.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68389811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Slayer Rule","authors":"N. Cohen","doi":"10.2139/SSRN.2141336","DOIUrl":"https://doi.org/10.2139/SSRN.2141336","url":null,"abstract":"The nowadays universal 'slayer rule' is based on considerations of autonomy and public policy. It is the subject of the detailed and thoughtful section 45 of Restatement Third Restitution. Different answers were given in different periods, among them biblical times, to the question whether a slayer could inherit the testator he had killed. The complexity of the matter is rooted in the different perceptions regarding the limits of law, the relations between the legislator and the judiciary, the tensions between text and context; rules and standards; public and private spheres and criminal and private sanctions. The contradictory considerations behind the rule lead to conflicting proposals either to expand or to restrict its application. But the whole question is much wider. It concerns the proper scope of the principle of 'ex turpi causa' in private law and the need to regulate by rules some intriguing questions of corrective, distributive and retributive justice.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67942432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Veil-Piercing Unbound","authors":"Peter B. Oh","doi":"10.2139/SSRN.1925009","DOIUrl":"https://doi.org/10.2139/SSRN.1925009","url":null,"abstract":"Veil-piercing is an equitable remedy. This simple insight has been lost over time. What started as a means for corporate creditors to reach into the personal assets of a shareholder has devolved into a doctrinal black hole. Courts apply an expansive list of amorphous factors, attenuated from the underlying harm, that engenders under-inclusive, unprincipled, and unpredictable results for entrepreneurs, litigants, and scholars alike. Veil-piercing is misapplied because it is misconceived. The orthodox approach is to view veil-piercing as an exception to limited liability that is justified potentially only when the latter is not, a path that invariably leads to examining scenarios based on different types of creditors/claims, corporations, and shareholders. But the occasion to seek derivative relief from a shareholder arises only when a claim cannot be enforced against a defendant corporation. Veil-piercing is thus a secondary remedy, detached from limited liability and its rationales. To fix veil-piercing, corporate law must look beyond itself. For centuries the law of restitution has featured the constructive trust, an equitable remedy that disgorges misappropriated assets from unjustifiably enriched parties. This Article novelly re-conceives veil-piercing as constructive trust and demonstrates how its application to judgment-proof corporations can yield more coherent and effective results.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2012-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67791664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restitution and Relationships","authors":"Hanoch Dagan","doi":"10.2139/SSRN.1906659","DOIUrl":"https://doi.org/10.2139/SSRN.1906659","url":null,"abstract":"This Essay examines how restitutionary doctrines protect the integrity of certain types of relationships by providing guarantees against betrayal of trust and by making free-riding a losing proposition. It also considers contexts wherein restitution serves to recruit third parties, meaning parties external to the relationship the law seeks to safeguard, as indirect guardians. More broadly, this Essay challenges the schism between autonomy-based and utility-based accounts of restitution or of private law more generally, and explains how a pluralist theory may help to address this flaw.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2011-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67777264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trail Smelter Deja Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canada-U.S. Transboundary Water Pollution Disputes","authors":"Austen L. Parrish","doi":"10.2139/SSRN.588448","DOIUrl":"https://doi.org/10.2139/SSRN.588448","url":null,"abstract":"In the 1930s, a privately owned smelting plant in Trail, Canada was the focus of the most famous case in international environmental law: the Trail Smelter Arbitration. But the subject of that landmark case has not gone away. Over the last seventy years, the Trail smelter dumped millions of tons of mercury, arsenic, and toxic waste into the Columbia River. The dumping's effects have been felt in neighboring Washington State, where the toxic discharges have caused environmental harm. In 2003, the EPA began investigating the Washington border area for designation as a Superfund (CERCLA) site, and controversially demanded that the Trail smelter, which operates solely in Canada, submit to EPA jurisdiction and pay for cleanup costs. In July 2004, a Native American tribe filed a citizen's suit: the first time ever Americans have sued a Canadian company under the U.S. Superfund laws. This article explores the United States's unprecedented attempt to apply its Superfund laws extraterritorially and to use domestic courts to resolve U.S.-Canadian transboundary water pollution disputes. In recent years, traditional barriers to relief in domestic courts have vanished. But using U.S. courts to solve international disputes is problematic for a variety of reasons. If transboundary disputes can not be solved diplomatically, the U.S. and Canada would be wise to resolve their transboundary pollution problems through international arbitration. This article analyzes the limitation of domestic law, and argues that the 1909 Boundary Waters Treaty and the landmark Trail Smelter Arbitration provides an appropriate framework to do so successfully.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2007-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67770282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Women and Antiwar Protest: Rearticulating Gender and Citizenship","authors":"Kathryn Abrams","doi":"10.1017/CBO9780511627095.008","DOIUrl":"https://doi.org/10.1017/CBO9780511627095.008","url":null,"abstract":"INTRODUCTION 849 I. PROTEST AND WARTIME CITIZENSHIP 851 A. The Ambivalent Status of Protest 851 B. Wartime Citizenship 852 C. The Contemporary Context of Women’s Antiwar Protest 856 II. THREE WOMEN’S ANTIWAR MOVEMENTS 858 A. Cindy Sheehan and the Camp Casey Vigil 858 B. CODEPINK for Peace 863 C. Women in Black 865 III. REARTICULATING GENDER, RECREATING CITIZENSHIP 868 A. Gender and the Body Politic 868 1. The Angry Mother 869 2. The Gendered Direct-Action Performer 871 3. The Woman as Witness 872 B. Gendered Antiwar Protest and Political Efficacy 872 C. Gendered Antiwar Protest and the Paradoxes of Women’s Citizenship 876 CONCLUSION 880","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511627095.008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57085274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeal","authors":"W. Farnsworth","doi":"10.2139/SSRN.926316","DOIUrl":"https://doi.org/10.2139/SSRN.926316","url":null,"abstract":"This article is an empirical study of the voting behavior of 30 federal appellate judges in criminal cases that weren't decided unanimously. The cases were divided into two sets: those that involved disputes over constitutional law and those that involved disputes over other kinds of legal materials (e.g., statutes and rules). The basic results are that (a) judges vary widely in how often they vote for the government in non-unanimous cases, but (b) any given judge votes for the government about as often in such cases regardless of whether they involve debates over the Constitution or other sources of law. The most plausible reason for the tight correlation is that in close cases of any kind judges use the same policy preferences or views of human behavior as their sources of decision.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2006-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.926316","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67887728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}