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The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J. Nov 2006

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


Leaving No Child Behind (Except In States That Don't Do As We Say): Connecticut's Challenge To The Federal Government's Power To Control State Education Policy Through The Spending Clause, Nicole Liguori Sep 2006

Leaving No Child Behind (Except In States That Don't Do As We Say): Connecticut's Challenge To The Federal Government's Power To Control State Education Policy Through The Spending Clause, Nicole Liguori

Boston College Law Review

The No Child Left Behind Act of 2001 ("NCLB") conditions the states' receipt of federal education funds on, among other things, the creation of testing schemes for elementary school students and the posting of test results. Although NCLB threatens the states' constitutional power to set education policy, two provisions of the law could potentially alleviate this threat: (1) an "unfunded mandates" provision prohibiting federal officers from requiring the states to spend funds not provided by NCLB, and (2) a provision allowing the U.S. Secretary of Education (the "Secretary") to waive provisions of NCLB at a state's request. These ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jun 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be ...


Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J. May 2006

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of ...


We Are The World? Justifying The U.S Supreme Court’S Use Of Contemporary Foreign Legal Practice In Atkins, Lawrence, And Roper, Andrew R. Dennington May 2006

We Are The World? Justifying The U.S Supreme Court’S Use Of Contemporary Foreign Legal Practice In Atkins, Lawrence, And Roper, Andrew R. Dennington

Boston College International and Comparative Law Review

Since 2002, the U.S. Supreme Court has consulted contemporary foreign legal judgments to help interpret, and dramatically expand, the substantive scope of the Bill of Rights in three landmark cases. It has not, however, explained when and why contemporary foreign legal materials are relevant to a principled, objective mode of constitutional interpretation. This Note represents an attempt to do so. It postulates two rationales that could retrospectively justify the Court’s methodology in Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons (2005). One is grounded in a theory of Anglo-American common law, the other rests ...


Governments And Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?, Terence J. Centner Jan 2006

Governments And Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?, Terence J. Centner

Boston College Environmental Affairs Law Review

State anti-nuisance laws, known as right-to-farm laws, burden neighboring property owners with nuisances. The purpose of the laws is to protect existing investments by offering an affirmative defense. Activities that are not a nuisance when commenced cannot become a nuisance due to changes in land uses by neighbors. While most state laws involve a lawful exercise of the state’s police powers, a right-to-farm law may set forth protection against nuisances that is so great that it operates to effect a regulatory taking. Judicial rulings that two Iowa right-to-farm laws went too far in reducing neighbors’ constitutionally protected rights augur ...