Faculty Bibliography
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Discusses the variety of objections to inequality, relations between these objections, and the implications of this pluralist view of equality for the question of cosmopolitanism about justice.
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The paper examines how the value of choice account is supposed to explain the significance of choice in the justification of moral principles and social institutions and policies, responding to some questions and objections raised by Serena Olsaretti.
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Discusses Waheed Hussain’s conception of freedom and its relation to value pluralism.
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This briefing highlights the importance of a child-centered approach in children’s asylum cases by focusing on Mejilla-Romero v. Holder, a recent First Circuit Court of Appeals case presented by the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services.
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An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.
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This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual‐level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to nondisabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA‐related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.
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Assessing the threat the anticircumvention provisions of the Digital Millennium Copyright Act pose for fair use.
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The 11th edition of this comprehensive casebook continues the tradition of offering instructors a rich theoretical, historical and political context for the cases. At the same time, recognizing changing pedagogical demand, the book offers a leaner presentation of many topics and more cues for helping students navigate the book.
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Henry E. Smith, Introduction, in Research Handbook on the Economics of Property Law (Kenneth Ayotte & Henry E. Smith eds., 2011).
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Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.
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In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.
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In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly apply to attorneys. The effect is to slowly move the center of gravity of attorney regulation toward a complex web of federal regulation in the many areas that involve federal interests. This process offers some important benefits of contextualization and carries some risk, including conflicts between federal and state norms. Our robust experience with federalism provides a mechanism to work through these tensions and differences.
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As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or Convention) has an opportunity to progressively reconfigure the structure and process of human rights oversight. The Convention was opened for signature on March 30, 2007, and entered into force on May 3, 2008. On November 3, 2008, a monitoring Committee on the Rights of Persons with Disabilities (Committee) was elected during the initial Conference of States Parties to protect the rights of the world’s largest minority, some 650 million persons with disabilities. The overall framework for monitoring and implementing the Convention resembles existing core human rights instruments, particularly the Enforced Disappearances treaty that was adopted eight days afterwards. At the same time, the Committee is endowed with several notable innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more generally. Accordingly, this Article examines the development of the CRPD Committee and assesses its potential for invigorating future United Nations monitoring reforms. Part I of the Article describes the Committee established by the United Nations to scrutinize the CRPD and highlights its advances over other human rights treaty bodies. Next, Part II looks at monitoring innovations that were suggested during the CRPD negotiations at a time when treaty body reform was a major subtext, but ultimately were not incorporated into the final instrument. In doing so, Part II considers how adoption of some of these oversight procedures could have affected broader human rights treaty reform efforts at the United Nations. Finally, Part III suggests creative avenues through which the Committee may yet progressively shape the direction of human rights treaty monitoring through innovative practices.
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This chapter overviews the UN DIsability Convention’s adoption, summarizes its substantive content, and assesses its future prospects for bettering the life circumstances of the world’s six hundred and fifty million persons with disabilities. Although the CRPD has a remarkably broad transformative potential, we focus here on three areas we feel are most likely to yield immediate results.
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The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first international human rights instrument that is both applicable to, and legally enforceable by, individuals on the basis of their disability status. Its adoption by the General Assembly culminates a dramatic paradigm shift over the past thirty years regarding the equal place of persons with disabilities in global society, and also advances those principles. Disability rights advocates and their representative organizations have successfully transformed the theoretical underpinnings of international law relating to disabled persons from a medical model to a social model perspective. The CRPD’s adoption cements into place the precepts of the social model of disability, while also advancing a holistic human rights framework. This latter scheme combines civil and political rights as provided by the social model, with social, economic, and cultural rights typically contained in equality measures and development schemes. By providing both types of these interdependent rights, the CRPD endeavors to ensure the equality of persons with disabilities. This chapter briefly recounts the overall shift from notions of welfare towards that of human rights for persons with disabilities in international legal instruments, and discusses some implications of that extraordinary sea change. Further to publisher request only an abstract is furnished.
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The key United States law regulating employment discrimination against employees with disabilities is the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employment discrimination against any 'qualified individual with a disability'. This proscription includes traditional prohibitions of 'disparate treatment' and 'disparate impact'. Another form of employment discrimination prohibited by the ADA is the failure to provide a 'reasonable' workplace 'accommodation' to a qualified individual with a disability. The statute defines those individuals as workers who are capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations. Because reasonable accommodations are the focus of scholarly and political debate over the ADA, while also being the main innovation in disability employment discrimination worldwide, this chapter focuses on accommodations. Although the ADA is a United States statute, it has had considerable influence on disability-related employment laws internationally. This is true for systemic national laws such as the United Kingdom's Disability Discrimination Act that are closely modeled on the ADA as well as for international acts that borrow specific concepts from the ADA (Stein and Stein 2007). Notably, the ADA's reasonable accommodation mandate has been adopted by the United Nations.
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This chapter provides an overview of the background to the UN Disability Convention’s adoption, summarizes the contents of the CRPD, and then assesses its future prospects for improving the lives of the six hundred and fifty million individuals with disabilities worldwide. When looking forward we focus on three areas where we believe the Convention will have the most immediate impact, beginning with more abstract notions that include reconceptualizing disability as a human rights issue and moving thereafter towards more concrete results. [Further to publisher request only an abstract is furnished.]
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Richard J. Lazarus, Foreword to A Good Quarrel: America's Top Reporters Share Stories from Inside the Supreme Court (Timothy R. Johnson & Jerry Goldman eds., 2009).
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I recently wrote a book about the future of the Internet. The book's thesis is that the mainstream computing environment we've experienced for the past 30-plus years—dating from the introduction of the first mainstream personal computer, the Apple II, in 1977—is an anomaly. The basic building blocks of modern IT are PCs that anyone can reprogram, connected to an Internet that unquestioningly routes bits between two arbitrary points. This has led to a generative revolution where novel and disruptive technologies have come from obscure backwaters—and conquered. While incumbents bet on (or were) gated-community networks like CompuServe, Prodigy, and AOL, or makers of "smart appliances" such as dedicated word processors and video-game consoles, dark-horse candidates like the Internet and the PC emerged unexpectedly and triumphed, helped along by commercial forces that belatedly hopped on their bandwagons.
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Emergency situations arising from natural disasters invariably cause human suffering. It is the responsibility of domestic governments and international humanitarian assistance organizations to minimize this anguish to the greatest extent possible, especially for vulnerable populations. Almost by definition, advance planning is crucial. Yet all too often governments, humanitarian assistance agencies, and other policy makers fail to adopt a disability perspective in natural disaster humanitarian crises situations. With distressing frequency, the disability experience is either neglected completely or lost when cast among other vulnerable groups. Below, we examine these failures in several contexts, and make suggestions for more integrated and disability-appropriate advance planning. We introduce the problem through the lens of United States domestic policy during Hurricanes Katrina and Rita, and then globalize the problem by examining the role of disability and humanitarian assistance programming in the developing world. Our assertion in this chapter is straightforward: considering the disability experience and including persons with disabilities when planning disaster relief in the first instance minimizes human harm and reduces (re)development costs in the future.
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"The Dramatic Growth of Government since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government's costs, efficiency, and quality of service. This concern, combined with rising confidence in private markets, motivates the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. "Government by contract" now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects." "Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?" "Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns."--Jacket. An earlier version of the chapter appeared as an article in: 46 Boston College Law Review 989 (2005).
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Kaufman and Wilkins mark the 20th anniversary of Problems in Professional Responsibility for a Changing Profession with a new 5th edition. Their new edition covers judicial, legislative, and executive developments in the traditional fields of conflicting interests and confidentiality, specialty fields of corporate and government representation as well as representation of those with impaired capacity. It also deals with the problems created by the increasing nationalization and internationalization of law practice, including the basic problem of trying to determine whose professional responsibility law governs the activity of lawyers when they engage in activity beyond their home jurisdictions. Various efforts to reform the profession here and abroad to meet the legal needs of clients and would-be clients are also presented. The authors have added substantial new material dealing with the demographics and institutions of law practice and their effect on professional identity.
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In December 2005, South Africa's National Prosecuting Authority (NPA) promulgated a controversial policy on the prosecution of apartheid-era crimes, sparking renewed debate about such prosecutions and their role in the transition to democracy since 1994. The book presents a diverse collection of perspectives on prosecutions in South Africa, including a foreword by playwright and actor John Kani. Other reflections from former Truth and Reconciliation Commission (TRC) commissioners, survivors of apartheid, civil society members, and government officials outline the serious questions facing South Africa as it deals with prosecutions today. The book traces the history of the prosecutions in South Africa including their relationship to the TRC and a recent legal challenge that asserts the NPA policy is an unconstitutional re-run of the TRC amnesty process. Throughout, the book highlights the important themes related to any post-conflict prosecution scheme including rule-of-law concerns, questions of evenhandedness and moral relativism, competing priorities and resource allocation, the limits of a court-centered approach to justice, and the potential transformative power of prosecutions.
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This article considers the contributions of the CRPD to the development of social rights. More specifically, it tracks the normative content of the social rights to participate in sport, recreation and play and considers the relationship of these rights to the substantive equality vision reflected in the Convention. The article begins by charting the paradigmatic shift from a medical model of disability to a social model and ultimately to a rights-oriented understanding of disability that makes possible an equality approach to dismantling persistent disability discrimination and social marginalization, isolation, and exclusion. Next, it analyzes the conceptual framework for social rights in the CRPD and the connection between State obligations to eliminate disability discrimination and social rights’ guarantees for equal participation in sport, recreation, leisure and play. It further considers the content of CRPD’s Article 30(5). Finally, it explores the implications of these rights for the expressive and socializing effects of the Convention.
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This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic law and process reflect important dimensions of international law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.