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Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen Jan 2020

Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen

Boston College Law Review

Public-law litigation often gives rise to a basic but important asymmetry: claimants wishing to obtain a particular form of redress for a particular legal wrong must satisfy all the relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief. In contrast, governments wishing to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in their favor. This Article considers the extent to which this asymmetry influences the development of the law. Specifically, this Article hypothesizes that, where the remediation of a right depends on a claimant’s satisfaction of multiple, mutually necessary ...


The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy Dec 2019

The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy

Boston College Law Review

Can employers use trade secret law to prevent employees from using knowledge and skills they acquired on the job? Courts in all fifty states say no—an employee’s general knowledge, skill, and experience cannot be protected as a trade secret. Yet a benchmark principle of trade secret law is that employers can share trade secrets with employees so long as they take reasonable measures to preserve the information’s secrecy. The result is a paradox that runs to the heart of trade secret law: employers are encouraged to communicate trade secrets to employees, but this information loses protection if ...


Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young Nov 2019

Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young

Boston College Law School Faculty Papers

In 2014, five-year old South African Michael Komape fell through a broken toilet—a rudimentary pit outfitted by his school—and drowned. His case was taken up by “SECTION27”, a social justice organization in South Africa, which campaigns for constitutional rights to dignity, equality, education, health care, social assistance, food and water (the latter rights are entrenched in the Constitution’s section 27). Pursuing both a #JusticeForMichael political campaign and litigation, SECTION27 won its argument about government liability, but failed in securing a remedy for Michael’s traumatized family.

The Komape case is emblematic of the complex interaction that can ...


Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan Sep 2019

Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan

Boston College Law School Faculty Papers

This Article argues that the Court’s recent decisions have effectively revived Pennoyer’s focus on physical presence and status, at the expense of the fairness and contact considerations set forth in International Shoe, as the bases for asserting personal jurisdiction. Part II details the jurisdictional analysis under both Pennoyer and International Shoe. Part III discusses the evolution of personal jurisdiction doctrine under International Shoe. Part IV demonstrates that the Court’s recent decisions have revitalized Pennoyer’s territorially based regime, and consequently diminished the thrust of International Shoe.


Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave Apr 2018

Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave

Boston College Law Review

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s ...


Crowdfunding Civil Justice, Ronen Perry Apr 2018

Crowdfunding Civil Justice, Ronen Perry

Boston College Law Review

The Article provides a systematic law and economics analysis of civil litigation crowdfunding. It first distinguishes between investment-based and non-investment-based crowdfunding models. Investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of frivolous litigation. Thus, it should be minimally regulated by securing disclosure of relevant information to potential investors. Non-investment-based crowdfunding of process costs should be subject to professional vetting, which will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. Non-investment-based crowdfunding of outcome ...


Sovereignty And Social Change In The Wake Of India’S Recent Sodomy Cases, Deepa Das Acevedo Apr 2017

Sovereignty And Social Change In The Wake Of India’S Recent Sodomy Cases, Deepa Das Acevedo

Boston College International and Comparative Law Review

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest ...


Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu Apr 2017

Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu

Boston College Law Review

In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim under the Sherman Act based on sham litigation. By contrast, in 2009, in In re DDAVP Direct Purchaser Antitrust Litigation, the Second Circuit held that precisely such evidence was sufficient to state a Sherman Act claim. This Comment argues that the Second Circuit’s ...


The Racialization Of Juvenile Justice And The Role Of The Defense Attorney, Tamar R. Birckhead Apr 2017

The Racialization Of Juvenile Justice And The Role Of The Defense Attorney, Tamar R. Birckhead

Boston College Law Review

The existence of structural racism is not new. In fact, as the second decade of the twenty-first century comes to a close, there is evidence of a national political openness to acknowledging the phenomenon. This Article seizes upon this openness as it seeks to provide a fuller understanding of how structural racism operates within a branch of the criminal justice system that is often overlooked—the juvenile justice system. The Article offers a definition of racialization that acknowledges its multi-dimensional and fluid nature and the ways it is perpetuated via juvenile court rhetoric, processing, and procedure. It demonstrates how the ...


Dispelling The Myth That Law Students Can Close The Justice Gap, John P. Gross Feb 2017

Dispelling The Myth That Law Students Can Close The Justice Gap, John P. Gross

Boston College Law Review

Recently, the idea that law students can bridge the “justice gap,” understood here as both the inability of low-income Americans to obtain civil legal services and the inadequacy of representation by overworked public defenders in criminal cases, has been gaining in popularity. This growing trend is embodied in the pro bono requirements imposed on bar applicants in a growing number of states. This Essay argues that the idea that law students can make a “significant” contribution to closing the existing justice gap overestimates the number of law students currently enrolled in our nation’s law schools and underestimates the volume ...


Caudle V. District Of Columbia: The Golden Rule Has No Place In A Courtroom, Craig Randall Feb 2014

Caudle V. District Of Columbia: The Golden Rule Has No Place In A Courtroom, Craig Randall

Boston College Law Review

On February 15, 2013, the U.S. Court of Appeals for the District of Columbia in Caudle v. District of Columbia held that golden rule arguments made in the context of liability are prejudicial and can warrant the granting of a new trial. This Comment argues that the damages-liability distinction for golden rule arguments as applied by the Second, Fifth, Tenth and Eleventh Circuits is the appropriate approach, and that there should not be a per se exclusion of golden rule arguments on the issue of liability.


Bridging The (Liability) Gap: The Shift Toward § 271(B) Inducement In Akamai Represents A Partial Solution To Divided Infringement, Brett M. Jackson Nov 2013

Bridging The (Liability) Gap: The Shift Toward § 271(B) Inducement In Akamai Represents A Partial Solution To Divided Infringement, Brett M. Jackson

Boston College Law Review

In recent years, the U.S. Court of Appeals for the Federal Circuit made it increasingly difficult for patentees of method patents to hold any party liable for infringement in divided infringement cases. As such, the Federal Circuit failed to adequately protect method patentees, leaving a glaring liability loophole in patent infringement jurisprudence. In 2012, however, in Akamai Technologies, Inc. v. Limelight Networks, Inc., the en banc Federal Circuit marked a fundamental shift in its divided infringement jurisprudence, holding that claims practiced by multiple actors could be resolved through an application of inducement infringement. Under this new standard, parties may ...


Check Fraud And The Common Law: At The Intersection Of Negligence And The Uniform Commercial Code, Melissa Waite Nov 2013

Check Fraud And The Common Law: At The Intersection Of Negligence And The Uniform Commercial Code, Melissa Waite

Boston College Law Review

Common law negligence claims persist in check fraud cases despite the Uniform Commercial Code’s loss allocation provisions in Articles 3 and 4. Absent an explicit preemption provision, courts disagree as to whether, when, and to what extent the Code preempts these common law claims. As a result, the courts’ varying analytical approaches to common law negligence claims often create seemingly conflicting results. This Note reviews the current loss allocation rules in check fraud scenarios and examines recent preemption case law. It argues in favor of the comprehensive rights and remedies analysis used by the majority of courts to determine ...


"Alien" Litigation As Polity-Participation: The Positive Power Of A "Voteless Class Of Litigants", Daniel Kanstroom Oct 2012

"Alien" Litigation As Polity-Participation: The Positive Power Of A "Voteless Class Of Litigants", Daniel Kanstroom

Boston College Law School Faculty Papers

From the introduction:

The framing title of this Symposium—Noncitizen Participation in the American Polity—seems to present an obvious contradiction: How can noncitizens, who are by legal definition “aliens” and often seen as “outsiders;” who are frequently described as lacking full “membership” in society; and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented—who by definition have violated U.S. law, who face the existential epithet of being “illegal aliens,” and who have been well-described as living under “a regime of enforced invisibility”—possibly do so? Are they even ...


Tort As A Litigation Lottery: A Misconceived Metaphor, Timothy D. Lytton, Robert L. Rabin, Peter H. Schuck Jan 2011

Tort As A Litigation Lottery: A Misconceived Metaphor, Timothy D. Lytton, Robert L. Rabin, Peter H. Schuck

Boston College Law Review

For over forty years, tort reform proponents have disparaged the tort system as a lottery, arguing that it produces arbitrary outcomes. This criticism has been offered as justification for reform proposals that would replace the tort system with some form of no-fault accident insurance. We do not oppose no-fault alternatives to tort, but this Essay is not the place to weigh the merits of one or another such proposal. Our purpose here is the more limited one of discrediting the lottery metaphor as applied to the tort system. We make three claims. First, this metaphor obscures the tort system’s ...


Impersonating The Legislature: State Attorneys General And Parens Patriae Product Litigation, Donald G. Gifford Sep 2008

Impersonating The Legislature: State Attorneys General And Parens Patriae Product Litigation, Donald G. Gifford

Boston College Law Review

The state attorney general has emerged during the past decade as a "super plaintiff" in state pawns patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. Attorneys general sue on behalf of their states as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state ...


Megacases, Diversity And The Elusive Goal Of Workplace Reform, Nancy Levit Mar 2008

Megacases, Diversity And The Elusive Goal Of Workplace Reform, Nancy Levit

Boston College Law Review

Structural reform litigation, lawsuits that aim to create systemic change, dates back to the school desegregation cases of the 1950s and today continues with employment discrimination class action suits. Some of' America's most important companies—Home Depot, Texaco, and Coca- Cola among them—have been subject to such litigation. This Article discusses the legal impetus towards the settling of such suits via consent decrees, and it examines several major consent decrees and the factors influencing the success or failure of each. The Article concludes that the defendant's acceptance of the desirability of creating a diverse workplace, coupled with ...


Forming Involuntary Client Relationships, Paul R. Tremblay Jan 2008

Forming Involuntary Client Relationships, Paul R. Tremblay

Boston College Law School Faculty Papers

No abstract provided.


Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay Apr 2007

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Boston College Law School Faculty Papers

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns ...


Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy Nov 2006

Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy

Boston College Law School Faculty Papers

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and ...


Environmental Attorneys And The Media: Guidelines For Effectiveness, John M. Stanton Jan 2006

Environmental Attorneys And The Media: Guidelines For Effectiveness, John M. Stanton

Boston College Environmental Affairs Law Review

It is often difficult for a public interest advocate to compete with wealthy interests that have vastly greater resources at their disposal and opposing policy preferences. In order to level this playing field, advocates can effectively employ media strategies that allow the public to participate in the public policy debate. This public awareness can often be very effective in influencing the course of the debate and sensitizing policy makers to the competing interests at stake. Accordingly, media tools and goals should be considered at the outset of strategy development, and should inform everything from a project’s title to its ...


"Pre-Negotiation" Counseling: An Alternative Model, Paul R. Tremblay Jan 2006

"Pre-Negotiation" Counseling: An Alternative Model, Paul R. Tremblay

Boston College Law School Faculty Papers

This Article describes an alternative model for the process of legal counseling, a model applicable to a very common counseling experience ignored by the conventional Interviewing and Counseling texts—the experience of obtaining negotiating and settlement authority from a client. Counseling is, of course, a basic lawyering skill taught in law school clinics and in simulation courses. It is one of the most critical elements of good lawyering, and it is a skill which can be taught, and taught through the use of models. Every lawyering skills book available includes instruction about effective counseling. But when one reviews the available ...


The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein Jan 2006

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Boston College Law School Faculty Papers

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out ...


Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


Respondeat Superior: Never Send To Know For Whom The Bell Tolls: It Tolls For Thee, Paul R. Tremblay, J. Charles Mokriski Nov 2005

Respondeat Superior: Never Send To Know For Whom The Bell Tolls: It Tolls For Thee, Paul R. Tremblay, J. Charles Mokriski

Boston College Law School Faculty Papers

No abstract provided.


Law And Accounting: Cases And Materials (Front Matter), Lawrence A. Cunningham Sep 2005

Law And Accounting: Cases And Materials (Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors’ own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. In so designing this innovative book, readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual ...


Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng Apr 2005

Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng

Boston College Law School Faculty Papers

Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client’s culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client’s culture. It therefore suggests that multicultural lawyering training should ...


Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett Jan 2005

Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett

Boston College Law School Faculty Papers

The Catholic Church’s opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church’s teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be ...


Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham Jan 2005

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by ...


The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow Sep 2004

The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow

Boston College Law School Faculty Papers

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics ...