Faculty Research Brochure 2013 by Boston University School of Law

Celebrating the publication of our facultyâ&#x20AC;&#x2122;s latest scholarly books

3 Signature Strength, an introduction by

Signature Strength

Faculty Books and Symposia Celebrating Their Contributions to Scholarship

The publication of ambitious scholarly books—a hallmark of an outstanding law faculty—has become a signature strength of the faculty of Boston University School of Law in recent years. The leading academic presses have published our faculty members’ important scholarly works spanning a wide range of fields, including constitutional history, constitutional theory, criminal law, critical race theory, family law, intellectual property law, legal and political philosophy, and securities and fiduciary law. Many have reflected rich interdisciplinary perspectives: law and anthropology, law and economics, law and history, law and political science, and law and philosophy. We are proud to feature these books in this publication.

Maureen O’Rourke and James Fleming

4 Hugh Baxter, Habermas: The Discourse Theory of Law and Democracy

5 Khiara Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization

6 James Fleming and Linda McClain,

Ordered Liberty: Rights, Responsibilities and Virtues

7 Tamar Frankel, The Ponzi Scheme Puzzle: A History and Analysis of Con Artists and Victims

8 Keith Hylton, Laws of Creation: Property Rights in the World of Ideas

9 Gary Lawson, The Origins of the Necessary and Proper Clause

10 David Lyons, Confronting Injustice: Moral History and Political Theory

Boston University has a deep commitment not only to excellence in law teaching but also to the highest standards in legal research and scholarship.

11 Tracey Maclin, The Supreme Court and the Fourth Amendment’s Exclusionary Rule

Maureen A. O’Rourke

12 Linda McClain, What Is Parenthood?

Contemporary Debates About the Family

13 Jay Wexler, The Odd Clauses: Under-

Contents

standing the Constitution Through Ten of Its Most Curious Provisions

14 A dditional Books Published by Our Faculty in Recent Years

Over the past several years, Boston University School of Law has celebrated the publication of our faculty’s ambitious scholarly books by holding a series of symposia. On each occasion, we have invited several distinguished commentators to discuss the book, and offered the author the opportunity to reply. We are honored to list the distinguished commentators in these rich exchanges in the pages that follow.

Dean Michaels Faculty Research Scholar Professor of Law James E. Fleming Associate Dean for Research and Intellectual Life The Honorable Frank R. Kenison Distinguished Scholar in Law Professor of Law

Habermas: The Discourse Theory of Law and Democracy

Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization

Stanford, CA: Stanford University Press, 2011

Berkeley: University of California Press, 2011

By Hugh W. Baxter

By Khiara M. Bridges

Though many legal theorists are familiar with Jürgen Habermas’s work addressing core legal concerns, they are not necessarily familiar with his earlier writings in philosophy and social theory. Because Habermas’s later work on law invokes, without significant explanation, the whole battery of concepts developed in earlier phases of his career, even otherwise sympathetically inclined legal theorists face significant obstacles in evaluating his insights.

Hugh W. Baxter Professor of Law Professor of Philosophy AB, with honors, Stanford University PhD, Philosophy, Yale University JD, with distinction, Stanford University

A similar difficulty faces those outside the legal academy who are familiar with Habermas’s earlier work. While they readily comprehend Habermas’s basic social-theoretical concepts, without special legal training they have difficulty reliably assessing his recent engagement with contemporary legal thought. This new work bridges the gap between legal experts and those without special legal training, critically assessing the attempt of an unquestionably preeminent philosopher and social theorist to engage the world of law.*

“A must read for all those interested in an exposition of Jürgen Habermas’s fundamental contribution to legal scholarship.”

Reproducing Race, an ethnography of pregnancy and birth at a large New York City public hospital, explores the role of race in the medical setting. Khiara M. Bridges investigates how race—commonly seen as biological in the medical world—is socially constructed among women dependent on the public health care system for prenatal care and childbirth.

“A clear, well-judged, and cool assessment of Jürgen Habermas and his debates with Niklas Luhmann, two giants of twentieth-century social theory.” Tim Murphy The London School of Economics and Political Science

“Baxter’s study offers the first extended discussion of the development of Habermas’s view on law and society—a development not without its own tensions and difficulties— from The Theory of Communicative Action to Between Facts and Norms. It also highlights the under-acknowledged influence of Niklas Luhmann, the other great contemporary German legal and social theorist, on Habermas’s views as a whole. An informed and important contribution to our understanding of Habermas’s political, legal and social theory.” Kenneth Baynes Syracuse University

David M. Rasmussen Boston College

Khiara M. Bridges Associate Professor of Law

Symposium

Associate Professor of Anthropology

September 26, 2011

JD, Columbia Law School

Frank I. Michelman, Robert Walmsley University Professor, Harvard Law School James Schmidt, Professor of History, Philosophy, and Political Science, Boston University

BA, summa cum laude, Spelman College PhD, with distinction, Columbia University

“This is an important topic and one the author is well positioned to explore. Very, very powerful.” Cheryl Mattingly Author of Healing Dramas and Clinical Plots

Bridges argues that race carries powerful material consequences for these women even when it is not explicitly named, showing how they are marginalized by the practices and assumptions of the clinic staff. Deftly weaving ethnographic evidence into broader discussions of Medicaid and racial disparities in infant and maternal mortality, Bridges shines new light on the politics of health care for the poor, demonstrating how the “medicalization” of social problems reproduces racial stereotypes and governs the bodies of poor women of color.*

“Bridges radically and actively demonstrates the truth of her claims through outstanding ethnography and analysis. Eminently praiseworthy.” Robbie Davis-Floyd Author of Birth as an American Rite of Passage and lead editor of Birth Models That Work

Symposium April 11, 2011 Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School Sally Engle Merry, Professor of Anthropology, Law and Society, New York University Department of Anthropology and School of Law Lucie White, Louis A. Horvitz Professor of Law, Harvard Law School

“An important and timely contribution to recent scholarship on race in science, medicine, and public health. From the first page I did not want to put the book down.” Lundy Braun Brown University *Reprinted with the permission of Stanford University Press, www.sup.org.

*Reprinted with the permission of University of California Press, www.ucpress.edu.

Ordered Liberty: Rights, Responsibilities and Virtues Cambridge, MA: Harvard University Press, 2013 By James E. Fleming and Linda C. McClain

James E. Fleming Associate Dean for Research and Intellectual Life The Honorable Frank R. Kenison Distinguished Scholar in Law Professor of Law AB, summa cum laude, University of Missouri JD, magna cum laude, Harvard Law School PhD, Politics, Princeton University

Linda C. McClain Paul Siskind Research Scholar Professor of Law AB, with high honors, Oberlin College MA, University of Chicago Divinity School JD, cum laude, Georgetown University Law Center LLM, New York University School of Law

Many have argued in recent years that the US constitutional system exalts individual rights over responsibilities, virtues, and the common good. 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 and at the same time also promotes 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.* “In this robust defense of political liberalism, James Fleming and Linda McClain argue that protecting rights and promoting personal responsibility are not in conflict. Both state and civil society should help people learn how to govern themselves, respect each other, and develop their own moral capacities. This is an important book that moves beyond old debates about rights and addresses the problems of pluralism in the twenty-first century.”

Stephen Macedo Princeton University

“Ordered Liberty provides a novel exploration of the relation between First Amendment rights of conscience and the Fourteenth’s rights of equality, a valuable discussion of the relative duties, rights and powers of parents and states for the education of children, and rich and original defenses of a woman’s right and responsibility to decide on the

*Reprinted with the permission of Harvard University Press, www.hup.harvard.edu.

New York: Oxford University Press, 2012 By Tamar Frankel

Robin L. West Georgetown University Law Center

Tamar Frankel

Jack M. Balkin Yale Law School

“Fleming and McClain defend principles, policies, and institutions designed to form responsible citizens. They affirm that parents, government, and civil society, including religious institutions, share the responsibility for fostering capacities for democratic and personal self-government. Learned, balanced, humane, and clear, this book epitomizes the virtues of that reasonable constitutional liberalism that Americans should count among their proudest achievements.”

The Ponzi Scheme Puzzle: A History and Analysis of Con Artists and Victims

course of a pregnancy, and a same-sex couple’s decision to marry. The authors deepen our understanding of what liberal constitutionalism requires of us as well as the rights it accords us as citizens of law’s empire.”

Michaels Faculty Research Scholar Professor of Law Diploma, Jerusalem Law Classes, Israel SJD, Harvard Law School LLM, Harvard Law School

Symposium February 11, 2013 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

In The Ponzi Scheme Puzzle, renowned legal scholar Tamar Frankel explores con artists’ fascinating powers 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 to prevent charming, dangerous con artists from perpetuating the enduring, disastrous legacy of Charles Ponzi.* “A financial thriller, a masterly page-turning inquiry into tragi-comic gullibility and greed, of Ponzi victims and perpe-

trators alike. The belief in market rationality (another confidence trick?) and the rocketing returns of finance induced clever people to forget that there was no free lunch.”

“Clearly written with extensive documentation (30-plus pages of endnotes), this timely book will interest those concerned with behavioral finance and criminal psychology. Recommended.”

Avner Offer University of Oxford

CHOICE Magazine

“Professor Frankel’s book is a must read for anyone considering investment opportunities as well as those who provide investment advice and those charged with preventing investment fraud. Professor Frankel provides a captivating exploration of the characteristics of con artists who perpetrate Ponzi schemes along with the characteristics of those who fall victim to such schemes. But, more importantly, she highlights how and why such schemes so successfully defraud everyone from the novice investor to those considered financially sophisticated, all while providing a provocative analysis regarding how best to ensure that we do not become the next Ponzi scheme victim.” Lisa M. Fairfax The George Washington University Law School

“Professor Tamar Frankel’s book is a fascinating look at the world of con artists. How do con artists hide their scams— scams that often seem so obvious after the fact? Who do they scam? And why don’t investors ever seem to learn? Throughout her investigations of these questions, she introduces a colorful cast of characters from today and yesterday. The book is a terrific read whether one is interested in human psychology or just wants to learn more about an irresistible, limited-time-only investment in ‘gold-backed railroad bonds.’”

Symposium January 28, 2013 Stanley Fisher, Professor of Law, Boston University School of Law David Gebler, President, Skout Group, LLC Kent Greenfield, Law Fund Research Scholar, Boston College Law School

Allen Ferrell Harvard Law School *By permission of Oxford University Press, www.oup.com.

Keith N. Hylton William Fairfield Warren Distinguished Professor Professor of Law BA, magna cum laude, Harvard University JD, Harvard Law School PhD, Massachusetts Institute of Technology

Laws of Creation: Property Rights in the World of Ideas

The Origins of the Necessary and Proper Clause

Cambridge, MA: Harvard University Press, 2013

New York: Cambridge University Press, 2010

By Keith N. Hylton (with Ronald Cass, former dean, Boston University School of Law)

By Gary S. Lawson (with Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman)

While innovative ideas and creative works increasingly drive economic success, the historic approach to encouraging innovation and creativity by granting property rights has come under attack by a growing number of legal theorists and technologists. In Laws of Creation, Ronald Cass and Keith Hylton take on these critics with a vigorous defense of intellectual property law. The authors look closely at the IP doctrines that have been developed over many years in patent, copyright, trademark, and trade secret law. In each area, legislatures and courts have weighed the benefits that come from preserving incentives to innovate against the costs of granting innovators a degree of control over specific markets. Over time, the authors show, a set of rules has emerged that supports wealth-creating innovation while generally avoiding overly expansive, growth-retarding licensing regimes. These rules are now under pressure from detractors who claim that changing technology undermines the case for intellectual property rights. But Cass and Hylton explain how technological advances only strengthen that case. In their view, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, and the greater the disincentive to invest time and money in inventions and creative works. The authors argue convincingly that intellectual property laws help create a

society that is wealthier and inspires more innovation than those of alternative legal systems. Ignoring the social value of intellectual property rights and making what others create and nurture “free” would be a costly mistake indeed.*

“Laws of Creation revisits the important debates that have developed within the field of intellectual property law and enlightens them with the perspective and logical apparatus of law and economics. Definitely, this is a book that academics in the field and libraries worldwide would want to have.” Francesco Parisi University of Minnesota Law School

“Cass and Hylton’s excellent book is a substantial contribution to the literature on intellectual property with a very nice overview of the field. Readers will be attracted to the book for its ability to convey complex material using concrete language and examples. In the highly contested area of intellectual property, Laws of Creation will be hard to ignore, even by those who are disinclined to agree with its conclusions.” Henry E. Smith Harvard Law School

*Reprinted with the permission of Harvard University Press, www.hup.harvard.edu.

Gary S. Lawson Philip S. Beck Professor of Law

Symposium

BA, summa cum laude, Claremont Men’s College

November 26, 2012

JD, Yale Law School

Michael Meurer, Abraham & Lillian Benton Scholar, Boston University School of Law David Olson, Assistant Professor of Law, Boston College Law School Henry Smith, Fessenden Professor of Law, Harvard Law School

The Necessary and Proper Clause is one of the most important parts of the US Constitution. Today this short 39-word paragraph is cited as the legal foundation for much of the modern federal government. Through three independent lines of research, the authors trace the lineage of the Necessary and Proper Clause to the everyday law of the Founding Era—the same law that American founders such as Madison, Hamilton, and Washington applied in their daily lives.

ways in our fundamental public law. . . . The book [is] a provocative challenge to the mid-twentiethcentury understandings of the Necessary and Proper Clause. [I]n challenging the conventional wisdom it makes a valuable contribution to our understanding of the American Constitution. . . . Whatever one’s interpretive framework, this book will be of wide-ranging interest.”

Origins of the Necessary and Proper Clause are found in law, governing agencies, public administration, and corporations. Moreover, all of those areas were undergirded by common principles of fiduciary responsibility—reflecting the Founders’ view that a public office is truly a public trust. This explains the choice of language in the clause and provides clues about its meaning. This book thus serves as a reference source for scholars seeking to understand the intellectual foundations of one of the Constitution’s most important clauses.*

George Thomas Claremont McKenna College

“Drawing on private law, the authors make a powerful case for its influence on our understanding of the public law of the Constitution. It is an impressive historical and logical case, which gets reinforced from different perspectives—the private law of agency, and in particular corporate law, as well as the common law and administrative law—that are seen to be manifest in interesting

“The four authors of Origins have solved an important mystery. They have shown beyond a reasonable doubt that the phrase ‘necessary and proper’ was not pulled from thin air. They have also shown that the clause was most likely understood as an incidental powers clause. . . . Beyond that, they have offered a rich set of arguments about why the clause should be read in light of the more detailed requirements of fiduciary law, English administrative law, or corporate law. These accounts are intricate and surprisingly persuasive, given how much they cut against the conventional wisdom.”

Symposium October 17, 2011 Philip A. Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia University School of Law Ken I. Kersch, Associate Professor of Political Science, History, and Law, Boston College John F. Manning, Bruce Bromley Professor of Law, Harvard Law School

John F. Manning Harvard Law School

*Reprinted with the permission of Cambridge University Press, www.cambridge.org.

Confronting Injustice: Moral History and Political Theory

The Supreme Court and the Fourth Amendment’s Exclusionary Rule

New York: Oxford University Press, 2013

By David B. Lyons

By Tracey Maclin

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.

David B. Lyons Law Alumni Scholar Professor of Law Professor of Philosophy BA, Brooklyn College MA, Harvard University PhD, Harvard University Postdoctoral work, University of Oxford

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.*

“This book asks readers to engage in re-assessments of American history. Lyons asks us to put in perspective the injustices suffered by the colonists at the hands of the British, as measured against the injustices of genocide and slavery perpetrated by Americans of European ancestry, to consider seriously the continuing legacies of racial injustice in the United States and its failures of redress, and to rethink arguments regarding political obligation to any state that has not come to terms with such a past. Accessible to the general reader, passionate and cogently argued, this book should be required reading for anyone interested in political thought.” Claudia Card University of Wisconsin—Madison

“A book that asks us to rethink our practice of political philosophy by taking the actual histories and the testimonies of those oppressed under unjust, immoral, and illegal systems seriously in how we understand what is at stake in a political and legal theory and how we frame its problems. David Lyons writes with extraordinary clarity and insight about difficult questions in a way that is engaging, inspiring, and edifying.” Aaron Garrett Boston University

*By permission of Oxford University Press, www.oup.com.

Tracey Maclin

Symposium September 30, 2013 Claudia Card, Emma Goldman Professor of Philosophy, University of Wisconsin—Madison Aaron Garrett, Associate Professor of Philosophy, Boston University Tommie Shelby, Professor of African and African American Studies and of Philosophy, Harvard University

Joseph Lipsitt Faculty Research Scholar Professor of Law BA, magna cum laude, Tufts College JD, Columbia University School of Law

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 rule using objective legal analysis and behind-thescenes 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’s 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.* “The Supreme Court and the Fourth Amendment’s Exclusionary Rule [is] a work of timely significance. In this book, Maclin joins his broad knowledge about the Fourth Amendment with extensive research into the conference notes and internal memoranda of the justices. The result is a work that is likely to give even students of the Fourth Amendment new

insights into the evolution and current status of the exclusionary rule.” Jack E. Call Radford University

“There is much to recommend this volume to the general reader. Maclin’s book may be commended for its concise yet in-depth summary of a multifaceted body of law. The deeper significance of the author’s work is how the Court’s treatment of this one legal issue opens a pathway to a more profound question regarding the history and process of constitutional interpretation.” Hon. George T. Anagnost Presiding Judge for the Peoria Municipal Court

“Anyone teaching Crim Pro/Police who has not already seen Tracey Maclin’s new book should do so. It integrates Supreme Court history, both from the papers of the justices and the biographical literature, into the history of e-rule doctrine. The book is a gold mine for scholars and indispensable background for classroom teaching.” Donald Dripps University of San Diego School of Law

Symposium February 4, 2013 Peter Levitt, Assistant US Attorney and Adjunct Professor of Law, Boston University 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

*By permission of Oxford University Press, USA, www.oup.com.

What Is Parenthood? Contemporary Debates About the Family

The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions

New York: New York University Press, 2013

Boston: Beacon Press, 2011 By Jay D. Wexler

Edited by Linda C. McClain (with Daniel Cere)

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? 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.*

“I highly recommend this thoughtprovoking and compelling book. It examines parenthood at a time when the concept of the family is radically changing, most notably stemming from the rise of singleparent households and divorced and blended families. And it 12

This book is an innovative, insightful, and often humorous look at the Constitution’s lesser-known clauses, offering a fresh approach to understanding our democracy.

proposes a number of intelligent and important solutions. After all, the long-term health of our representative democracy is dependent on our ability, as parents, to prepare our children for the future.” Leah Ward Sears, former chief justice Georgia Supreme Court

“This book is a much-needed model for how to bring civility and reason into the culture wars. It is a frank but non-polemical exploration of the science, ethics, and politics that affect our views about when and how we should regulate parenthood— one that opens up rather than shuts down the conversation.” Katharine Bartlett Duke Law School

“What Is Parenthood? is an invaluable resource for anyone who wishes to think critically about modern parenthood and what the government can and should do to improve families. In bringing together eminent figures from different disciplines and from different political or cultural views about the family, it maintains an important dialogue about the best way forward.” Brian Bix University of Minnesota Law School

*Reprinted with the permission of NYU Press, nyupress.org.

Jay D. Wexler

Symposium March 4, 2013 Sanford Katz, Darald & Juliet Libby Professor of Law, Boston College Law School Laura Rosenbury, Professor of Law, Washington University School of Law Katharine Silbaugh, Law Alumni Scholar, Boston University School of Law

Professor of Law BA, magna cum laude, Harvard University MA, University of Chicago Divinity School JD, Stanford Law School

If the United States Constitution were a zoo, and the First, Fourth, and Fourteenth Amendments were a lion, a giraffe, and a panda bear, respectively, then The Odd Clauses would be a special exhibit of shrews, wombats, and bat-eared foxes. Past the ever-popular monkey house and lion cages, Boston University Law Professor Jay Wexler leads us on a tour of the lesser-known clauses of the Constitution, the clauses that, like the yeti crab or platypus, rarely draw the big audiences but are worth a closer look. Just as ecologists remind us that even a weird little creature like a shrew can make all the difference between a healthy environment and an unhealthy one, understanding these odd clauses offers readers a healthier appreciation for our constitutional system. With Wexler as your expert guide through this jurisprudence jungle, you’ll see the Constitution like you’ve never seen it before.*

constitutional provisions that you won’t realize until the trip is over how much you’ve learned.” Pamela S. Karlan Stanford Law School

“The book provides a fresh vantage point from which to consider the Constitution.” CHOICE Magazine

“Professor Wexler dispenses his expertise on the Constitution with a light touch, imparting many lasting insights and a few belly laughs along the way. What a delight to discover that our founding document is not only brilliant, but brilliantly weird.” Ben H. Winters Author of Sense and Sensibility and Sea Monsters

“A know-it-all’s treasure trove, a cabinet of constitutional curiosities, The Odd Clauses touches down on NASA, Ellis Island, even Saturday Night Live. Jay Wexler is brilliantly snarky, erudite and comedic.”

Symposium March 5, 2012 David Barron, Honorable S. William Green Professor of Public Law, Harvard Law School Trevor Morrison, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School Adam Samaha, Professor of Law, University of Chicago Law School

“In The Odd Clauses, Wexler exits off Julianna Baggott Author of Girl Talk and Pure the highway to take us on a tour of some back roads of constitutional law: places scholars and the public seldom visit, like the Bill of Attainder Clause or the Third Amendment (which prohibits quartering of troops in private houses during peacetime, in case you didn’t know). The result is magical: you’ll have so much fun reading about these unsung *Reprinted with the permission of Beacon Press, www.beacon.org. 13

Additional Books Published by Boston University Law Faculty in Recent Years Akram, Susan M. International Law and the Israeli-Palestinian Conflict: A RightsBased Approach to Middle East Peace. New York: Routledge, 2010 (with Michael Dumper, Michael Lynk, and Iain Scobbie). Fleming, James E. Constitutional Interpretation: The Basic Questions. New York: Oxford University Press, 2007 (with Sotirios A. Barber). Fleming, James E. Securing Constitutional Democracy: The Case of Autonomy. Chicago: The University of Chicago Press, 2006. Fleming, James E., ed., Nomos L: Getting to the Rule of Law. New York: New York University Press, 2011. Fleming, James E., ed., Nomos LII: Evolution and Morality. New York: New York University Press, 2012 (with Sanford Levinson).

Lawson, Gary. The Constitution of Empire: Territorial Expansion and American Legal History. New Haven: Yale University Press, 2004 (with Guy Seidman). Leonard, Gerald. The Invention of Party Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois. Chapel Hill: University of North Carolina Press, 2002. McClain, Linda C. The Place of Families: Fostering Capacity, Equality, and Responsibility. Cambridge, MA: Harvard University Press, 2006. McClain, Linda C. Gender Equality: Dimensions of Womenâ&#x20AC;&#x2122;s Equal Citizenship. New York: Cambridge University Press, 2009 (with Joanna L. Grossman).

Fleming, James E., ed., Nomos LIII: Passions and Emotions. New York: New York University Press, 2013.

Meurer, Michael J. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton, NJ: Princeton University Press, 2008 (with James Bessen).

Fleming, James E., ed., Nomos LV: Federalism and Subsidiarity. New York: New York University Press, forthcoming 2014 (with Jacob T. Levy).

Park, William W. Arbitration of International Business Disputes: Studies in Law and Practice. New York: Oxford University Press, 2d ed., 2012.

Frankel, Tamar. Fiduciary Law. New York: Oxford University Press, 2010.

Yackle, Larry. Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law. Chicago: The University of Chicago Press, 2007.

Frankel, Tamar. Trust and Honesty: Americaâ&#x20AC;&#x2122;s Business Culture at a Crossroad. New York: Oxford University Press, 2006. Hecht, Neil S. Windows onto Jewish Legal Culture: Fourteen Exploratory Essays. New York: Routledge, 2012 (with Hanina Ben-Menahem and Arye Edrei).

Hylton, Keith N. Antitrust Law: Economic Theory and Common Law Evolution. New York: Cambridge University Press, 2003.

For more information on our faculty and their publications, visit www.bu.edu/law.

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