Past Events - 2013


America’s Political Dysfunction: Constitutional Connections, Causes, and Cures

Friday, November 15 & Saturday, November 16, 2013

Political Dysfunction Conference Postcard

In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.

More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.

This conference assessed such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it focused on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will asked “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?

The conference addressed not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?

The papers and proceedings will be published in Boston University Law Review.

Conference Schedule

Video and recap: Cass R. Sunstein delivers keynote address at BU Law's Political Dysfunction conference


Time, Institutions, and Interpretation
Annual Distinguished Lecture featuring Michael W. McConnell

Thursday, November 7, 2013


We were honored to welcome Michael W. McConnell as our 2013 Annual Distinguished Lecturer.

Although constitutional interpretation is historically defended on purely political or linguistic readings, we can more systematically examine the way the courts and democratic bodies (the institutions) understood the text of the constitution and its values through the frame of time: at the beginning, today, and the period in between. This leaves us with five major schools of thought: Originalism (democratic bodies at the beginning), Judicial Restraint (democratic bodies today), Activism/the Moral-Philosoph- ic Approach (courts today), Precedent (courts over time), and Tradition/Liquidation (democratic bodies over time). The question that Professor McConnell took up in his lecture was how to fit these various modes together in a way that is not simply results-oriented.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School. From 2002 to the summer of 2009, he served as Circuit Judge on the United States Court of Appeals for the Tenth Circuit. Prior to his appointment to the bench, McConnell was the Presidential Professor at the S.J. Quinney College of Law at the University of Utah, and before that the William B. Graham Professor of Law at the University of Chicago. He has also been a frequent visiting professor at Harvard Law School.

In his academic work, McConnell has written widely on such subjects as freedom of religion, segregation, unenumerated rights, and constitutional history and theory. He is co-editor of The Constitution of the United States (Foundation Press 2010), Religion and the Law (Aspen Pub. Co. 2002), and Christian Perspectives on Legal Thought (Yale Univ. Press 2002). In 1996, he was elected a Fellow of the American Academy of Arts and Sciences.

McConnell graduated from Michigan State University (B.A. 1976) and the University of Chicago Law School (J.D. 1979). Before entering teaching, he served as law clerk to Chief Judge J. Skelly Wright on the United States Court of Appeals for the D.C. Circuit and for Associate Justice William J. Brennan, Jr., on the United States Supreme Court, as Assistant General Counsel of the Office of Management and Budget, and as Assistant to the Solicitor General of the United States. McConnell has argued thirteen cases in the Supreme Court. In March he will argue Horne v. U.S. Dep’t of Agriculture. He is of counsel to Kirkland & Ellis in D.C.

Event recap: Michael W. McConnell proposes additional mode of constitutional interpretation



Book Symposium celebrating
Confronting Injustice: Moral History and Political Theory
David Lyons, Professor of Law, Professor of Philosophy, and Law Alumni Scholar

Monday, September 30, 2013


Boston University School of Law was delighted to celebrate the publication of Confronting Injustice: Moral History and Political Theory by David Lyons, Professor of Law, Professor of Philosophy, and Law Alumni Scholar.

The essays presented in this volume challenge both theorists and citizens to confront grave injustices committed in the United States. David Lyons encourages us to take a fresh look at the beginnings of America, including the colonists' early adoption of race-based slavery even though it was unlawful and why those who rebelled against English oppression were responsible for greater injustices against their Native American neighbors. Confronting injustice requires us to consider how delegates to the 1787 constitutional convention readily embraced increased protections for chattel slavery, why the federal government later abandoned Reconstruction, and why the nation allowed former slave owners to establish a new system of racial oppression called Jim Crow. It requires us to ask why America's official rejection of white supremacy is combined with an unwillingness to address continuing racial stratification. Confronting injustice calls upon political theorists to test their views in the crucible of social history. It challenges those who debate abstractly the idea of an obligation to obey the law to consider the implications of grievous injustices. It calls upon those who assume that their society is now 'reasonably just' to ask when that transformation occurred, despite the fact that children who are black or poor are denied equal opportunity.

To celebrate the publication of this timely and significant book, we invited three distinguished scholars to comment on it. Professor Lyons responded.

Welcome: Dean Maureen O’Rourke, BU School of Law

Moderator: James Fleming, Professor and Associate Dean, BU School of Law


Claudia Card, Emma Goldman Professor of Philosophy, University of Wisconsin

Aaron Garrett, Associate Professor of Philosophy, Boston University

Tommie Shelby, Professor of African and African American Studies and of Philosophy, Harvard University

Event Recap: Confronting Injustice Symposium



Constitution Day: DNA collection and the 4th Amendment
A panel discussion featuring Professors David Breen, Tracey Maclin and David Rossman

Thursday, September 26, 2013

In June 2013, the U.S. Supreme Court ruled in Maryland v. King that it does not violate the U.S. Constitution for the police to take DNA samples from people who have been arrested but not yet convicted. This decision forced the Court to confront the intersection of the right to privacy and cutting edge technology.

Professors David Breen, Tracey Maclin and David Rossman discussed how the Court got to its conclusion and where it will all lead.




BU Law Commencement Ceremony

Sunday, May 19, 2013

BU Law's 2013 Commencement ceremony took place at 9:00 a.m. on Sunday, May 19 at Agganis Arena. Our 2013 Commencement speaker was The Honorable Donald B. Verrilli, Jr., Solicitor General of the United States.

>> Watch Video


The Fiduciary Foundations of Federal Equal Protection
by Gary S. Lawson, Philip S. Beck Professor of Law

Thursday, April 18, 2013

Beck Lecture

Boston University School of Law was delighted to host the Beck Lecture featuring Professor Gary S. Lawson.

Professor Lawson's lecture explained how the Constitution imposes an equality norm on all three departments of the national government—not through some kind of "reverse incorporation" of the Fourteenth Amendment, but from the fiduciary principles that undergird the original document and help define the scope of the national government's enumerated powers.

Professor Gary S. Lawson has co-authored two books—The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) and The Constitution of Empire: Territorial Expansion and American Legal History (Yale University Press, 2004))—six editions of a widely used administrative law casebook, and more than 70 scholarly articles on a range of subjects, including administrative law, constitutional history, constitutional theory, corporate law and jurisprudence. His work has been cited twice by the United States Supreme Court and more than 1,800 times in scholarly works. He is a founding member of the Federalist Society for Law and Public Policy Studies and currently serves on the organization’s Board of Directors, and he is an associate editor of the Heritage Foundation’s Guide to the Constitution. He has served as associate dean for research and intellectual life at Boston University School of Law.

The Philip S. Beck Professorship was established through the generosity of Philip S. Beck ('76).

Event recap: Professor Gary Lawson, "humble scrivener," delivers annual Beck Lecture


The Next Season: Realigning International Law and Western Policy After the Arab Spring
A Conference Hosted by the Boston University International Law Journal

Monday, March 25, 2013


The wave of revolutions in the Middle East, beginning in Tunisia and culminating in the Egyptian Revolution in 2011, has been dubbed the “Arab Spring.” This dynamic series of events is currently witnessing its bloodiest period in Syria, while circumstances in Egypt, among other states, remain tenuous and dynamic. Particularly with the civil war intensifying in and potentially beyond Syrian territory, and with no resolution to Iranian nuclear standoff in sight, the global community remains on tenterhooks about the prospect of regional chaos or a catastrophe of global proportions.

Given the oil wealth of the region and the troublesome history of the Arab-Israeli conflict, the Middle East has long held a significant position in global politics and accordingly occupied a special place on the political agendas of Western governments and in the international community in general. Since the 9/11 attacks, the United States has also continued to grapple with the challenges of understanding and responding appropriately and effectively to the ideological opposition and deterring threats to its national security.

BU School of Law and the BU International Law Journal hosted this conference to further understand of the momentous legal and political challenges that continue to develop in the Middle East. Evelyn Mary Aswad, current Assistant Legal Adviser to the U.S. Department of State for Human Rights and Refugee Affairs, delivered an address entitled, "A View from the U.S. State Department," at lunch, and panelists considered the challenges faced by the United States, Europe and the international community in general in navigating the rapidly evolving political upheaval in the Middle East. Understanding these challenges is a necessary first step to designing effective policies to promote resolution within states and to achieve peace and stability globally.

Conference Schedule (PDF)

Feature story: Conference recap


A celebration of the publication of What Is Parenthood?: Contemporary Debates about the Family by Linda C. McClain, Professor of Law

Monday, March 4, 2013


Extraordinary changes in patterns of family life—and family law—have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage—or couplehood—when society seeks to foster children’s well-being? What is the better model of parenthood from the perspective of child outcomes?

Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? (New York University Press, 2013) asks bold and direct questions about parenthood in contemporary society, and it brings together a stellar interdisciplinary group of scholars with widely varying perspectives to investigate them. Editors Linda C. McClain and Daniel Cere facilitate a dynamic conversation between scholars from several disciplines about competing models of parenthood and a sweeping array of topics, including single parenthood, adoption, donor-created families, gay and lesbian parents, transnational parenthood, parent-child attachment, and gender difference and parenthood.

To celebrate the publication of this timely and significant book, we invited three distinguished scholars to comment on it. Professor McClain responded.

Book Symposium (BU Law, Barristers Hall, 12:45-2:00 p.m.)

Welcome: Dean Maureen O’Rourke, BU School of Law

Moderator: James Fleming, Professor and Associate Dean, BU School of Law


  • Sanford Katz, Darald & Juliet Libby Professor of Law, Boston College Law School
  • Laura Rosenbury, Professor of Law, Washington University School of Law (visiting at Harvard Law School)
  • Katharine Silbaugh, Professor of Law and Law Alumni Scholar, BU School of Law
Response: Linda McClain, BU School of Law


Taking On State Sponsors of Terrorism: A New Frontier in International Tort Litigation
Featuring Andrew C. Hall, William & Patricia Kleh Visiting Professor in International Law

Wednesday, February 27, 2013

Kleh Lecture

The inaugural Kleh Lecture featured Andrew C. Hall—a Holocaust survivor, celebrated leader in the fight against state-sponsored terrorism, and founder of Hall, Lamb and Hall in Miami. Hall’s impressive resume of high-profile cases includes the defense of John Ehrlichman, Nixon’s former senior adviser for domestic affairs, in the Watergate trial, as well as the recovery of a multi-million-dollar settlement from the Sudanese government for the families of U.S. sailors who died in the USS Cole attack. An expert litigator, Hall has successfully sued Iraq and Libya, as well, and won judgment on behalf of a Cuban expatriate for damages stemming from the Castro regime—including the forced suicide of the plaintiff’s father. Additionally, his casework involves complex commercial litigation, professional negligence, securities litigation and arbitration, family law, personal injury, and wrongful death.

This lecture is made possible through the generosity of Patricia and William H. Kleh (’71), who established the William & Patricia Kleh Visiting Professorship in International Law in February 2011.

Video and feature story: Andrew Hall delivers Kleh Lecture 2013




A celebration of the publication of Ordered Liberty: Rights, Responsibilities, and Virtues by Professors of Law James E. Fleming & Linda C. McClain

Monday, February 11, 2013


Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. In Ordered Liberty (Harvard University Press, 2013), answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination. The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.

To celebrate the publication of this timely and significant book, we invited three distinguished scholars to comment on it. Professors Fleming and McClain responded.

Book Symposium (BU Law, Barristers Hall, 12:45-2:00 p.m.)

Welcome: Dean Maureen O’Rourke, BU School of Law

Moderator: Gary Lawson, Philip S. Beck Professor of Law, BU School of Law


  • Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
  • Richard H. Fallon, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School
  • Marion Smiley, J.P. Morgan Chase Professor of Ethics, Brandeis University

Response: James Fleming & Linda McClain, BU School of Law


A celebration of the publication of The Supreme Court and the Fourth Amendment's Exclusionary Rule by Tracey Maclin, Professor of Law

Monday, February 4, 2013


The application of the Fourth Amendment's Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in the nation’s courts. Tracey Maclin’s The Supreme Court and the Fourth Amendment's Exclusionary Rule traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court's thinking. Based on original archival research into the private papers of retired Justices, Professor Maclin's analysis clarifies the motivations and thoughts that explain the Court's exclusionary rule jurisprudence. He includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change. Ultimately, this book will help readers understand how constitutional law is constructed by judges with diverse political perspectives.

To celebrate the publication of this learned and important book, we invited three distinguished commentators to discuss it. Professor Maclin responded.

Book Symposium (BU Law, Barristers Hall, 12:45-2:00 p.m.)

Welcome: Dean Maureen O’Rourke, BU School of Law

Moderator: Professor and Associate Dean James E. Fleming, BU School of Law


  • Peter Levitt, Assistant U.S. Attorney and Adjunct Professor of Law, BU School of Law
  • Christopher Slobogin, Milton Underwood Professor of Law, Vanderbilt University Law School
  • Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School

Response: Tracey Maclin, BU School of Law




A celebration of the publication of The Ponzi Scheme Puzzle: A History and Analysis of Con Artists and Victims by Tamar Frankel, Professor of Law and Michaels Faculty Research Scholar

Monday, January 28, 2013

Frankel Book Symposium

Charles Ponzi perpetrated his infamous scheme almost a hundred years ago. But his method of using new investments to pay existing investors and finance a highflying lifestyle is alive and well: just as much money is lost in the United States today from Ponzi schemes as from shoplifting. Somehow, con artists are able to dazzle wealthy, educated individuals and sophisticated institutions and convince them to hand over huge sums of money. How?

In The Ponzi Scheme Puzzle, renowned legal scholar Tamar Frankel explores these con artists' fascinating power of persuasion and deception, uncovering the subtle signals that mimic truth and honesty. After years of close study of hundreds of cases, Frankel explains the striking patterns that emerge and the common characteristics of the con artists and their victims. She offers clear yet comprehensive descriptions of the various designs of Ponzi schemers' attractive offers and flags the ways in which they mask their deception through specialized methods of advertising and selling. She then constructs lucid profiles of the con artists and their victims, exposing the core nature of the people at the heart of the schemes and showing how over time the lines between predator and prey are blurred. There are indeed many lessons to learn from these stories, and Frankel brings them to light through the insightful results of her research. She shows how peoples' attitudes are ambivalent and uncertain toward con artists, perhaps because their behavior is so seemingly honest, because they act like the social leaders with whom they are likely to mingle, or perhaps because their actions are thought to shake up a complacent society. Frankel concludes by offering a surprising solution on how to prevent charming, dangerous con artists from perpetuating the enduring, disastrous legacy of Charles Ponzi.

To celebrate the publication of this timely and provocative book, we invited three distinguished commentators to discuss it. Professor Frankel responded.

Book Symposium (BU Law, Barristers Hall, 12:45-2:00 p.m.)

Welcome: Dean Maureen O’Rourke, BU School of Law

Moderator: Professor and Associate Dean James E. Fleming, BU School of Law


  • Stanley Fisher, Professor of Law, BU School of Law
  • David Gebler, President, Skout Group, LLC
  • Kent Greenfield, Professor of Law & Law Fund Research Scholar, Boston College Law School
Response: Tamar Frankel, BU School of Law


The Future of Global Tobacco Control: Current Constitutional and Treaty-Based Challenges
A Conference Hosted by the American Journal of Law & Medicine

Friday, January 25, 2013


Many countries have enacted dramatic tobacco control legislation in the past few years, but the industry is fighting back. Battlegrounds include national constitutional laws, bilateral investment treaties, the WTO TRIPS Agreement and domestic IP laws. Recent examples abound, from plain-packaging legislation in Australia to the World Trade Organiza- tion’s ruling against the U.S. ban on clove cigarettes. The nuanced geographic and legal contexts complicate global regulatory control, which plays an important role in advancing global public health in the face of trade-related objections. What are the current legal challenges to global tobacco control regulations, and what additional obstacles lay ahead?

This symposium examined the common denominators faced by several countries with aggressive tobacco control legislation. Public health measures are being challenged with an ever-growing array of laws, but common themes emerge across the globe. Special attention was given to cigarette packaging litigation in the U.S. and Australia.

Conference Schedule (PDF)

Feature story: Event recap


Inaugural Esdaile Lecture featuring Supreme Court Justice Stephen Breyer

Thursday, January 24, 2013


Boston University School of Law was delighted to host the inaugural Esdaile Lecture featuring Supreme Court Justice Stephen Breyer.

Video & Feature:
Supreme Court Justice Stephen Breyer delivers inaugural Esdaile Lecture at BU Law

Associate Justice Stephen G. Breyer was born in San Francisco, August 15, 1938. He married Joanna Hare in 1967, and has three children: Chloe, Nell and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Supreme Court Justice Arthur Goldberg, as a special assistant to the assistant U.S. attorney general for antitrust, as an assistant special prosecutor of the Watergate Special Prosecution Force, as special counsel of the U.S. Senate Judiciary Committee, and as chief counsel of the committee. He was an assistant professor, professor of law and lecturer at Harvard Law School; a professor at the Harvard University Kennedy School of Government; and a visiting professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980­1990, he served as a judge of the United States Court of Appeals for the First Circuit, and as its chief judge, 1990­1994. He also served as a member of the Judicial Conference of the United States and of the United States Sentencing Commission. President Clinton nominated him as an associate justice of the Supreme Court, and he took his seat August 3, 1994.

The distinguished James N. Esdaile Lecture has been made possible by the generosity of Esdaile, Barrett, Jacobs & Mone, which created it to honor James N. Esdaile, Jr. ('70) a lifelong partner in the Boston-based law firm, former managing editor of the Boston University Law Review, and BU Law lecturer, university trustee and alumni association president.