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Nathan Roscoe Pound And The Nazis, Peter Rees May 2019

Nathan Roscoe Pound And The Nazis, Peter Rees

Boston College Law Review

When Roscoe Pound, Dean of Harvard Law School, accepted an honorary degree from a leading German university in 1934, it was interpreted as a gesture of support for the Nazi Party. Was this a naïve misstep, or something more sinister? This Article addresses that question. It highlights previously unknown encounters between Pound and senior Nazi figures at the time, and an unusual relationship between Pound and a suspected Nazi agent that lasted throughout the Second World War, and beyond. These revelations necessarily bring into question Pound’s personal ethics and his professional responsibilities as a lawyer.


Is Trolling Trump A Right Or A Privilege?: The Erroneous Finding In Knight First Amendment Institute At Columbia University V. Trump, Lauren Beausoleil Feb 2019

Is Trolling Trump A Right Or A Privilege?: The Erroneous Finding In Knight First Amendment Institute At Columbia University V. Trump, Lauren Beausoleil

Boston College Law Review

On May 23, 2018, in Knight First Amendment Institute at Columbia University v. Trump, the United States District Court for the Southern District of New York considered whether the President of the United States violated the First Amendment rights of individuals by blocking them on Twitter. In doing so, the district court agreed with the plaintiffs’ allegations that blocking constituted impermissible viewpoint discrimination in the context of a public forum. Despite the long history of the public forum doctrine, the information age has presented new questions regarding the doctrine, and Knight First Amendment Institute marks the first instance in which ...


Court Capture, J. Jonas Anderson May 2018

Court Capture, J. Jonas Anderson

Boston College Law Review

Capture—the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating—is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the theoretical case ...


Rethinking Trade Law In An Era Of Trump And Brexit, Frank J. Garcia Jan 2018

Rethinking Trade Law In An Era Of Trump And Brexit, Frank J. Garcia

Boston College Law School Faculty Papers

International trade and economic globalization are in crisis. In the U.S. and elsewhere, current regimes like NAFTA and the EU, and trade deals like the TTIP and the TPP, have become targets for the political backlash against trade and its larger context, economic globalization. Brexit and the 2016 U.S. election remind us that many feel betrayed by current trade policies, that free trade is being imposed on them at their cost but for others’ benefit.

At the heart of this crisis, however, there are as always opportunities. First, we have an opportunity to return to trade’s roots ...


Weaponizing Misery: The 20-Year Attack On Asylum, Kari E. Hong Jan 2018

Weaponizing Misery: The 20-Year Attack On Asylum, Kari E. Hong

Boston College Law School Faculty Papers

The Trump Administration is attacking asylum seekers—both in words and in deeds. In Attorney General Sessions’s speech against “dirty immigration lawyers,” for whom he blames for the rampant “fraud and abuse” in the system, the Attorney General highlighted policy initiatives undertaken by the Trump Administration to deter, delay, and deny asylum applicants who are seeking protections. This Article identifies the Trump Administration’s new policies and practices and criticizes those that impose irrational or unnecessary burdens on asylum seekers.

More salient, however, is that the Trump Administration’s attack on asylum is not a break from past practices ...


The Administrative Law Of Deregulation: The Long Road For The Trump Administration To Undo Obama-Era Regulations, Daniel A. Lyons Aug 2017

The Administrative Law Of Deregulation: The Long Road For The Trump Administration To Undo Obama-Era Regulations, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Identity Crisis: Veasey V. Abbott And The Unconstitutionality Of Texas Voter Id Law Sb 14, Mary Kate Sexton Jun 2017

Identity Crisis: Veasey V. Abbott And The Unconstitutionality Of Texas Voter Id Law Sb 14, Mary Kate Sexton

Boston College Journal of Law & Social Justice

In July 2016, the United States Court of Appeals for the Fifth Circuit reheard en banc its own three-judge panel decision ruling that Texas Senate Bill 14 (SB 14), a law requiring individuals to present a form of photo identification in order to vote, was unconstitutional in violation of the First and Fifteenth Amendments to the U.S. Constitution and Section 2 of the Voting Rights Act. The en banc Fifth Circuit reversed the District Court for the Southern District of Texas’s decision that SB 14 violated Section 2 of the Voting Rights Act. The en banc Fifth Circuit ...


The Limits Of Executive Clemency: How The Virginia Supreme Court Blocked The Restoration Of Felons’ Political Rights In Howell V. Mcauliffe, Alexander Pringle Jun 2017

The Limits Of Executive Clemency: How The Virginia Supreme Court Blocked The Restoration Of Felons’ Political Rights In Howell V. Mcauliffe, Alexander Pringle

Boston College Journal of Law & Social Justice

On July 22, 2016, the Supreme Court of Virginia found Virginia Governor Terence McAuliffe’s actions restoring full political rights to 206,000 Virginians convicted of a felony unconstitutional. At the same time, the court issued a writ of mandamus ordering Commonwealth officials to remove these convicted felons from the voting rolls and return their names to the list of prohibited voters. Governor McAuliffe had restored the political rights of these released felons en masse, via a single Executive Order on April 22, 2016, eschewing the typical case-by-case review process for restoration of voting rights. The majority in the case ...


While Trump Pledges Withdrawal From Paris Agreement On Climate, International Law May Provide A Safety Net, David A. Wirth Jun 2017

While Trump Pledges Withdrawal From Paris Agreement On Climate, International Law May Provide A Safety Net, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


Trump’S First Foreign Trip And The Fate Of The Paris Agreement: Reading The Tea Leaves From The G7 And Nato Summits, David A. Wirth May 2017

Trump’S First Foreign Trip And The Fate Of The Paris Agreement: Reading The Tea Leaves From The G7 And Nato Summits, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


Executive Agreements Relying On Implied Statutory Authority: A Response To Bodansky And Spiro, David A. Wirth May 2017

Executive Agreements Relying On Implied Statutory Authority: A Response To Bodansky And Spiro, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


A Continent Divided: Nationalism And The European Union, Vlad F. Perju Apr 2017

A Continent Divided: Nationalism And The European Union, Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


The Federal Anti-Corruption Enterprise After Mcdonnell: Lessons From The Symposium, George D. Brown Apr 2017

The Federal Anti-Corruption Enterprise After Mcdonnell: Lessons From The Symposium, George D. Brown

Boston College Law School Faculty Papers

This article was presented at the Penn State Law Review's Symposium, Breach of the Public (Dis)Trust. The article examines the potential impact of the Supreme Court's unanimous decision in McDonnell v. United States. The analysis first focuses on a narrow reading of McDonnell, treating it as part of the Court's general approach to issues of statutory construction. However, there is a possible broader reading of McDonnell, which has the potential to be highly significant as applied to anticorruption prosecutions, federalism concerns, and the "criminalization of politics" critique. After examining a broader view of McDonnell, the article ...


Mcdonnell And The Criminalization Of Politics, George D. Brown Jan 2017

Mcdonnell And The Criminalization Of Politics, George D. Brown

Boston College Law School Faculty Papers

The purpose of this article is to analyze the critique and McDonnell's impact on it. As for McDonnell itself, I contend that the decision gives proponents of the critique less than they claim. The opinion seems to say that an official whose case is identical to McDonnell's could, under a proper approach to bribery, be prosecuted for the same crimes, with the same facts used as evidence. Indeed, the Court raised the possibility that McDonnell himself could be successfully prosecuted in a retrial. The article begins with a discussion of the critique in order to put McDonnell in ...


Rebellious Strains In Transactional Lawyering For Underserved Entrepreneurs And Community Groups, Paul R. Tremblay Oct 2016

Rebellious Strains In Transactional Lawyering For Underserved Entrepreneurs And Community Groups, Paul R. Tremblay

Boston College Law School Faculty Papers

In his 1992 book Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice, Gerald Lopez disrupted the conventional understandings of what it meant to be an effective poverty lawyer or public interest attorney. His critiques and prescriptions were aimed at litigators and lawyers similarly engaged in struggles for social change. His book did not address the role of progressive transactional lawyers. Today, transactional lawyers working in underserved communities are far more common. This Essay seeks to apply Lopez’s critiques to the work of those practitioners.

I argue here that transactional legal services, or TLS, on behalf of subordinated ...


Beyond Campaign Finance Reform, Tabatha Abu El-Haj Sep 2016

Beyond Campaign Finance Reform, Tabatha Abu El-Haj

Boston College Law Review

While the public blames the United States Supreme Court’s decision in Citizens United v. FEC for the outsized political influence of the super-wealthy, experts in the field know that the constitutional constraints on our ability to limit the political influence of moneyed elites long-predate Citizens United and pose a formidable barrier to effective campaign finance reform. Nevertheless, the most consistent calls in legal circles are for yet more campaign finance reform. This Article argues that it is time for those serious about curtailing the influence of money in politics to recognize that the struggle for effective campaign finance reforms ...


When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan Sep 2016

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Boston College Law Review

Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the constitutional protections that citizens normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, the Department of Justice has made a broad claim that immigrants who have not been legally admitted to the country have no First Amendment protection at all. Second, the Supreme Court has approved broad prohibitions on non-citizens spending money on speech that is related to electoral campaigns. Third, the ...


Law And Finance: The Case Of Stock Market Development In China, Zhong Zhang Aug 2016

Law And Finance: The Case Of Stock Market Development In China, Zhong Zhang

Boston College International and Comparative Law Review

Having grown to one of the largest in the world in just over two decades, China’s stock market is cited as a counterexample to the significance of law for financial market development. A thorough examination of the development of China’s stock market, however, finds that law is actually critical to sustaining growth. On the other hand, the trajectory of development in China is growth first followed by law, and the improvement of law is caused by market growth. The experience of China suggests that law and market growth exhibit a bidirectional rather than unidirectional causal relationship, and the ...


“Death Tax” Politics, Michael J. Graetz May 2016

“Death Tax” Politics, Michael J. Graetz

Boston College Law Review

In his Keynote Address “Death Tax” Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation’s progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.


Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti May 2016

Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti

Boston College Law Review

The estate tax was enacted because of concerns about the impact of large concentrations of dynastic wealth on the political process. As discussed in this commentary, which reviews the Symposium articles by Paul Caron, David Joulfaian, and Jennifer Bird-Pollan, recent research by political scientists supports the legitimacy of these concerns. In addition, a significant body of studies suggests that inequality has a long-term negative impact on growth. Paul Caron observes in his article that progressivity in our tax system has been decreasing and that the estate tax was 60% or higher for fifty years (1934–1983), a rate much higher ...


The One-Hundredth Anniversary Of The Federal Estate Tax: It’S Time To Renew Our Vows, Paul L. Caron May 2016

The One-Hundredth Anniversary Of The Federal Estate Tax: It’S Time To Renew Our Vows, Paul L. Caron

Boston College Law Review

The approaching one-hundredth anniversary of the federal estate tax is an opportune time to revisit its historical origins, its role in our government and society through the years, and its current and future place in our fiscal firmament. This Article argues that the reasons behind the enactment of the estate tax in 1916—to raise revenue during a time of war, enhance the progressivity of the tax system, and curb concentrations of wealth—are even more compelling in 2016. As a result, this Article argues that revitalization of the estate tax should be a central tax reform plank of the ...


Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan May 2016

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Boston College Law Review

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the ...


Valuation, Values, Norms: Proposals For Estate And Gift Tax Reform, Bridget J. Crawford May 2016

Valuation, Values, Norms: Proposals For Estate And Gift Tax Reform, Bridget J. Crawford

Boston College Law Review

In their contributions to this Symposium, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system. Professor Dodge and Professor Gerzog are especially interested in accuracy in valuation, and advance specific proposals with respect to split-interest transfers and family limited partnerships. Professor Dodge makes an additional proposal to improve the generation-skipping transfer tax system, an understudied area of the law. Professor Gerzog’s Symposium contribution draws particular attention to the legal fiction on which the estate and gift tax marital deductions rely. She would restrict the availability of ...


Divide And Conquer: Using An Accessions Tax To Combat Dynastic Wealth Transfers, Miranda Perry Fleischer May 2016

Divide And Conquer: Using An Accessions Tax To Combat Dynastic Wealth Transfers, Miranda Perry Fleischer

Boston College Law Review

The current estate tax raises little revenue, yet is ill designed to further the social goals used to justify it. This Article takes one frequently mentioned goal—minimizing dynastic wealth transfers—and explores what insights focusing on that objective yields for the design of the transfer tax system. It starts from the premise that what renders dynastic wealth transfers problematic is that such transfers can bestow upon the recipient unearned political and economic power, which contravenes the democratic ideal that power should be earned, not inherited. Under this view, the tax system should be concerned with neither the build-up of ...


A Wealth Tax: Taxing The Estates Of The Living, David J. Shakow May 2016

A Wealth Tax: Taxing The Estates Of The Living, David J. Shakow

Boston College Law Review

It has now been one hundred years since the passage of the first estate tax, and since that time the size and complexity of the federal tax system has only continued to grow. In the face of that complexity it is worthwhile for the United States to begin considering alternatives. Do we continue with our system of income and consumption taxation, or do we turn to a wealth tax? A wealth tax is sometimes criticized as being too complex, but there are reasons to suggest it is no more complex than our current system—and possibly even less complex. When ...


Three Whacks At Wealth Transfer Tax Reform: Retained-Interest Transfers, Generation-Skipping Trusts, And Flp Valuation Discounts, Joseph M. Dodge May 2016

Three Whacks At Wealth Transfer Tax Reform: Retained-Interest Transfers, Generation-Skipping Trusts, And Flp Valuation Discounts, Joseph M. Dodge

Boston College Law Review

This Article offers three sets of proposals to reform the existing federal wealth transfer tax system, the common theme being the link between the timing of the taxable transfer and valuation. Under the first set of proposals, transfers with retained interests would be taxed at the first to occur of the transferor’s death or the date the interest expired. In addition, the term “retained interest” would be broadly construed to encompass the power to revoke and the possibility of receiving income or corpus under another person’s power. The second set of proposals relates to the generation-skipping tax. To ...


Case Of Mouvement Raëlien Suisse V. Switzerland: A Blow To Freedom Of Expression In The Internet Age, Ramya Vallabhaneni May 2016

Case Of Mouvement Raëlien Suisse V. Switzerland: A Blow To Freedom Of Expression In The Internet Age, Ramya Vallabhaneni

Boston College International and Comparative Law Review

On March 7, 2001, the Raël Movement (the Movement), a Geneva-based non-profit organization that aims to establish contact and good relations with extraterrestrials, sought permission from Swiss authorities in the city of Neuchâtel to put up posters for its April campaign. The Swiss authorities’ denial of the request was upheld in all four levels of Swiss appellate courts. The Movement appealed the case to the European Court of Human Rights (ECtHR) under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On July 13, 2012, The Grand Chamber of the ECtHR found that the ...


Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts Jan 2016

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts

Boston College Law Review

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s (“ACA”) low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although ...


Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young Jan 2016

Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young

Boston College Law School Faculty Papers

Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique ...


Two-Time Presidents And The Vice-Presidency, Dan T. Coenen Oct 2015

Two-Time Presidents And The Vice-Presidency, Dan T. Coenen

Boston College Law Review

Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President wholly ineligible for the vice-presidency? Is such a person barred from election to the vice-presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the vice-presidency, incapable of succeeding to the presidency? And if such a succession occurs, must the resulting term of service as President expire after two years? This Article addresses each of these ...