Boston University Law Review Online
Beyond VAWA: Localism as an Argument for Full Tribal Criminal Jurisdiction
Deanna Tamborelli
100 B.U. L. Rev. Online 305 (2020).
In dismantling tribal jurisdiction over crimes committed by non-Natives and then returning limited jurisdiction in a piecemeal fashion, the federal government has stifled the ability of tribes to develop effective responses while further entrenching a white supremacist, colonial system over sovereign peoples. It is due time for the federal government to support these communities as they seek to heal and rebuild. […]
Optimism and Despair About a 2020 “Election Meltdown” and Beyond
Richard L. Hasen
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 293 (2020).
We are certainly not living in the best of times. In many ways it does feel like the worst of times. It is easy under conditions of a pandemic, social unrest, increasing economic and political inequality, and rising political violence to despair of the potential for broad or even narrow positive social change. Perhaps, as Professor Abu el-Haj put it, we are living in a paradoxical period of “too little hope” and “not enough gloom.” […]
Voting During a Pandemic
Eugene D. Mazo
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 283 (2020).
While some observers have argued that the threats identified in Election Meltdown are “not exactly news,” repeatedly educating Americans about them—and especially the ways in which they may be used to place doubts in the minds of voters during the era of COVID-19—will continue to be a worthwhile endeavor for some time to come. If the past few months have taught us anything, it is that the excuse of a pandemic can be used to block access to the ballot box just as much as incompetence, dirty tricks, or incendiary rhetoric. […]
Governing Elections Without Law
Derek T. Muller
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 278 (2020).
The field of election law, unsurprisingly, focuses on law. But Professor Rick Hasen’s book Election Meltdown rightly highlights that law can only take us so far in governing elections. As we think about the problems that persist in our elections, Professor Hasen moves us to think about long-term reforms, which are the best and perhaps only ways to respond to some of our elections’ short-term perils. […]
Putting a Band-aid on a Gunshot Wound
Lorraine C. Minnite
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 273 (2020).
Over the last two decades, Professor Richard L. Hasen has been a trusted source of vital information and insight into the arcane field of election law for the public and scholars alike. Years ago, when such tools were relatively new, Hasen created an indispensable listserv for scholars, journalists, and practitioners who continue to receive a free near-daily roundup of news stories, reports, and developments in the law concerning elections, voting rights, and campaign finance. […]
Cracks in the Foundation
Lisa Marshall Manheim
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 268 (2020).
When Richard Hasen wrote Election Meltdown, he didn’t yet know that Donald Trump had, in the days before taking office, openly delighted in the low turnout among Black voters. Nor did Hasen know that the President would so brazenly push for reduced voting rates as he sought his own reelection—that he would, for example, threaten to block funding for the Postal Service in an effort to prevent mail-in voting; authorize his campaign to sue states for using ballot drop boxes;[4] or insist, without citing legal authority, that he would send “law enforcement” to the polls. […]
American Democracy Is Healthier than It Appears
Anthony J. Gaughan
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 249 (2020).
No scholar has had a greater impact on the field of election law than Professor Richard Hasen. Accordingly, when Professor Hasen warns that our democracy is in trouble, we should listen. In his superb new book Election Meltdown, he puts the country on notice that the election law wars of the past decade pose a growing threat to American democracy itself. […]
Eight Months Later
Ellen D. Katz
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 243 (2020).
Rick published Election Meltdown on February 4, 2020. It was the start of an election year, and, no doubt, he anticipated that disputes would soon emerge that would test, and in many cases, confirm his analysis. Eight eventful months have since passed. The COVID-19 pandemic has touched and altered every aspect of life with millions infected, millions more unemployed, and its radiating impacts expanding daily. Amid this evolving crisis came a second one as tens of millions of people worldwide joined Black Lives Matters (“BLM”) demonstrations to protest the killing of George Floyd by Minneapolis police officers and other cases of police violence. […]
Bug or Feature: The Long-Intertwined Legacy of Disinformation, Race, and Voting
Atiba R. Ellis
Online Symposium: Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020).
100 B.U. L. Rev. Online 238 (2020).
The crisis Professor Hasen despaired of in Election Meltdown is already happening. His book gives a snapshot of the current moment through its confluence of rhetorical and administrative malfeasance, hyper-partisanship and disinformation, and risk of outright disaster. […]
Keep the Federal Courts Great
Carl Tobias
100 B.U. L. Rev. Online 196 (2020).
Ever since Donald Trump began running for President, he has incessantly vowed to “make the federal judiciary great again” by deliberately seating conservative, young, and capable judicial nominees, a project which Republican senators and their leader, Mitch McConnell (R-KY), have decidedly embraced and now vigorously implement. The chief executive and McConnell now constantly remind the American people of their monumental success in nominating and confirming aspirants to the federal courts.[…]
“Alive but Still Not Free”: Nikki Addimando and Judicial Failure to Apply the Domestic Violence Survivors Justice Act
Christopher L. Hamilton
100 B.U. L. Rev. Online 174 (2020).
This Essay addresses the failure of the New York state judicial system to properly apply the Domestic Violence Survivors Justice Act (“DVSJA”), with devastating implications for those whom the law was intended to protect. In order to remedy this serious problem, this Essay proposes detailed considerations that state judges should contemplate when deciding whether to apply the DVSJA to a defendant’s sentencing.[…]
Birth Rights and Wrongs: Reply to Critics
Dov Fox
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 159 (2020).
The pandemic hasn’t spared reproductive freedom. School closures and clinic restrictions make birth control and fertility treatment harder to get, while new regulations put abortion, surrogacy, and genetic testing out of reach for many in need. Birth Rights and Wrongs charts the landscape of harms like these and hundreds of other less familiar ones scattered across American jurisprudence—from lab accidents to contraceptive sabotage.[…]
Reproductive Exceptionalism In and Beyond Birth Rights
Courtney Megan Cahill
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 152 (2020).
The law is no stranger to reproductive exceptionalism—the idea that reproduction is unique and that its uniqueness justifies laws that treat reproduction differently from other kinds of human behavior. In Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law, Professor Dov Fox takes aim at reproductive exceptionalism in the law of tort, which, Fox argues, fails to remedy reproductive harm on the mistaken belief that reproductive harm is different in kind from the sort of harm that tort law ordinarily captures.[…]
Birth Rights at War
Mary Ziegler
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 148 (2020).
In 2019 a record number of states passed laws banning all or most abortions, with each legislature vying to introduce the statute that would spell the end for Roe v. Wade. With the outbreak of the Covid-19 pandemic in the United States, some states have functionally banned all abortions for the duration of the pandemic. Understandably, commentators have focused on what these laws would mean for women seeking abortions. But these bans will likely have significant effects on other areas of the law governing reproduction.[…]
Is Tort Law the Tool for Fixing Reproductive Wrongs?
Christopher Robertson
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 143 (2020).
In his 2019 book, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law, Dov Fox offers a compelling argument for new torts allowing recovery for wrongful reproduction. These torts would include three sorts of cases, those where wrongdoing (whether negligent, reckless, or intentional) caused undesired reproduction; stymied desired reproduction; or confounded reproduction, causing birth of a child different than that intended by the parents.[…]
Response to Birth Rights and Wrongs
Janet Dolgin
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 139 (2020).
Birth Rights and Wrongs challenges limitations in the law’s response to tort claims by people who have suffered reproductive wrongs. Arguing for a more flexible understanding of tort law in response to reproductive wrongs, Professor Fox offers a multitude of insights about the implications of negligent errors that have resulted in non-birth (reproduction deprived), unwanted birth (reproduction imposed), and the birth of children who upset parental hopes and expectations about a child’s physical or mental condition (reproduction confounded.[…]
Accountability, Eugenics, and Reproductive Justice
Susan Frelich Appleton
Online Symposium: Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
100 B.U. L. Rev. Online 134 (2020).
Dov Fox’s Birth Rights and Wrongs makes a compelling case for a specific form of reproductive justice: Tort law should hold specialists in reproductive medicine accountable for their negligence, just as it would other health care providers. In pressing this thesis, Fox offers both an innovative taxonomy of varied ways that reproductive interventions can go astray,[2] inflicting lasting harm on individuals and families, and an effective critique of the myriad dodges used by courts to avoid imposing liability.[…]
Rediscovering Jacobson in the Era of COVID-19
Wendy E. Parmet
100 B.U. L. Rev. Online 117 (2020).
On May 29, 2020, as states across the country continued to ease the social distancing measures that had been put in place to stem the spread of COVID-19, the Supreme Court in South Bay United Pentecostal Church v. Newsom, by a 5-4 vote, denied an emergency request to enjoin California Governor Gavin Newsom’s order limiting the number of worshippers at in-person religious services.[…]
Suing China Over COVID-19
Paul J. Larkin, Jr.
100 B.U. L. Rev. Online 91 (2020).
On April 21, 2020, the state of Missouri filed a lawsuit in the U.S. District Court for the Eastern District of Missouri against the People’s Republic of China (“PRC” or “China”) and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last three months, put millions of people out of work, and killed thousands in the process.[…]
This Court Doesn’t Deserve This Book: A Reflection on Justin Driver’s Schoolhouse Gate
Joseph R. Fishkin
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 70 (2020).
Justin Driver’s The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind offers a portrait of a century of dynamic interaction between the Supreme Court, the American public school system, and the American public that is elegantly written, well-paced, deeply researched, highly opinionated, sometimes disputatious, and ultimately a little romantic about the Supreme Court.[…]
Education, Morality, and Human Development in Constitutional Decisions About Students’ Rights
Miriam Galston
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 75 (2020).
The encyclopedic character of Justin Driver’s The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind can obscure the most significant aspects of the author’s pioneering volume. The work is not only a history of constitutional doctrines that address students’ rights in elementary and secondary public schools, although its main purpose is to provide a detailed account of the emergence and evolution of those doctrines.[…]
Policing the Schoolhouse
Brandon L. Garrett
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 79 (2020).
In his new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, Professor Justin Driver describes the risk that schoolhouse gates can open to jail cells as schools become Constitution-free zones. Many of the most troubling cases and examples in his account of how the U.S. Supreme Court, the focus of the book, has adjudicated public education cases involves criminal investigations.[…]
Talking Out of Public School
Nancy Leong
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 84 (2020).
Justin Driver’s engaging and provocative monograph explains that it “examines the intersection of two distinctively American institutions: the public school and the Supreme Court.” Driver’s work provides us with fertile ground on which to grapple with an uncomfortable truth: The members of the latter institution have virtually no experience with the former institution.[…]
Constitutional Law and The Schoolhouse Gate
David A. Strauss
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 87 (2020).
The list of impressive things about Justin Driver’s The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind—it’s not a short list—begins with the subject of the book itself. Traditionally, cases about public education are scattered throughout the constitutional law curriculum.[…]
The Constitutional Case for State Power to Eliminate Faithless Electors
Tyler Creighton
Student Note
100 B.U. L. Rev. Online 57 (2020)
The 2016 election raised anew the prospect that the candidate who wins the most presidential electors in November might not be the candidate who receives the most electoral votes when the electors convene in their respective states in December or the candidate who Congress officially declares the next President when a joint session counts electoral votes in January. […]
Right on Time: Not Quite Right on Economics
Douglas W. Allen
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property, 99 B.U. L. Rev. 395 (2019).
100 B.U. L. Rev. Online 1 (2020)
Oliar and Stern develop an economic framework to understand the timing and nature of a first possession rule to establish property, apply this framework to the acquisition of intellectual property, and consider various policy and legal implications. At the most general level, I think their approach has merit and the applications are reasonable. However, the economic framework is muddled and incorrect. Here I will only comment on their economic framework, where I arguably have a comparative advantage. […]
Claim Communication in Intellectual Property: A Comment on Right on Time
Eric R. Claeys
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 4 (2020)
There is a lot to like in Right on Time. Professors Dotan Oliar and James Y. Stern remind legal scholars that what they call first possession norms do not constitute “an essentially antiquarian topic.” Olian and Stern have also provoked property and IP theorists to consider whether these norms apply in intellectual property (“IP”) law and policy. In IP scholarship, many, many works assume that, since intellectual works are nonrivalrous and nonexclusive, possession norms should not play any role in IP. That assumption seems wrong and deserves to be reconsidered. […]
The Acquisition of Property Rights in Animals: A Brief Comment on Oliar and Stern: Right on Time: First Possession in Property and Intellectual Property
Richard A. Epstein
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 11 (2020)
In their impressive article, Right on Time: First Possession in Property and Intellectual Property, Professors Dotan Oliar and James Y. Stern work diligently to develop a comprehensive theory that explains the acquisition of property rights in the full range of resources starting with land and animals, and then moving inexorably to deal with the three most important forms of intellectual property—patents, copyrights, and intellectual property. […]
The Importance of Communication to Possession in IP
Timothy R. Holbrook
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 16 (2020)
A key aspect of intellectual property is time. Patent law is rife with issues of timing. At the most basic level, patent rights are time-limited, leaving the rights holder a finite period to extract value from the patent. Moreover, as to validity, time impacts when to assess whether an invention is new, nonobvious, useful, and adequately supported by the patent disclosure. […]
The U.S. Patent System was (and is) a Rule-of-Capture Property Rights Regime
Adam Mossoff
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 19 (2020)
In Right on Time: First Possession in Property and Intellectual Property, Professors Dotan Oliar and James Y. Stern develop a conceptual framework that highlights the trade-offs in the choice between two different types of first possession regimes: the “first-committed-searcher rule” (early awards of property rights) and the “rule of capture” (late awards of property rights). […]
Right on Time, But How Much Does it Cost?
Carol M. Rose
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 23 (2020)
Professors Dotan Oliar and James Y. Stern have written an excellent article about the appropriate beginning time for intellectual property (“IP”) rights. They argue that the correct timing involves a trade-off between too-early allocation (rights go to someone who may not finish) and too-late (other potential creators may be scared off for too long, or alternatively, they may freeload). In an intriguing comparison, the authors map those choices onto first possession considerations in more conventional property, or what I am going to call “POP” for “plain old property.” […]
Failed First Possession and the Permanent Public Domain
Molly Shaffer Van Houweling
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 28 (2020)
Is it a good idea to think of intellectual property as property? It may seem like an odd question to those unfamiliar with the field and its policy and academic debates. We’re talking about intellectual property, after all. But the use of that umbrella term for fields of law including copyright, patent, and trademark is controversial.[…]