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Full-Text Articles in Law

Gender Matters In Juvenile Justice, Francine Sherman, Meda Chesney-Lind Dec 2010

Gender Matters In Juvenile Justice, Francine Sherman, Meda Chesney-Lind

Boston College Law School Faculty Papers

No abstract provided.


Normalizing Match Rights, Brian J.M. Quinn Nov 2010

Normalizing Match Rights, Brian J.M. Quinn

Boston College Law School Faculty Papers

Argues that Delaware courts subject matching rights in merger agreements to a higher level of scrutiny when challenged.


Will The Sec Survive Financial Regulatory Reform?, Renee M. Jones Nov 2010

Will The Sec Survive Financial Regulatory Reform?, Renee M. Jones

Boston College Law School Faculty Papers

The Securities and Exchange Commission’s (“SEC”) conspicuous failures during the financial crisis of 2008 have led many to question the agency’s relevance in the modern financial era. Some commentators have called for the creation of new super-agencies to assume a substantial portion of the SEC’s duties. Others highlight enforcement failures and question the agency’s commitment to its investor protection mission. Despite its recent missteps and persistent calls for regulatory overhaul, the SEC’s future seems secure for now as President Obama’s reform proposals (the “Obama Plan”) as currentlyconceived preserve the agency’s independence. Although thus ...


For Msnbc, Comcast Represents Not A Threat, But An Opportunity, Daniel A. Lyons Nov 2010

For Msnbc, Comcast Represents Not A Threat, But An Opportunity, Daniel A. Lyons

Boston College Law School Faculty Papers

This article discusses the economics and legal ramifications of vertical integration in the cable industry following the proposed merger of Comcast Corporation and NBC-Universal.


Learning From Disasters: Twenty-One Years After The Exxon Valdez Oil Spill, Will Reactions To The Deepwater Horizon Blowout Finally Address The Systemic Flaws Revealed In Alaska?, Zygmunt J.B. Plater Nov 2010

Learning From Disasters: Twenty-One Years After The Exxon Valdez Oil Spill, Will Reactions To The Deepwater Horizon Blowout Finally Address The Systemic Flaws Revealed In Alaska?, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Twenty years ago, after the calamitous Exxon Valdez oil spill in Alaska’s Prince William Sound, the pervasive systemic flaws—that according to the Alaska Oil Spill Commission had made a major calamity not just possible but probable—were largely cloaked behind the figure of a captain with a drinking problem. In 2010, after suffering another horrific oil incident—this one almost 20 times! larger than the Exxon Valdez spill—the question for national energy law and policy is whether, this time around, we’ll acknowledge and implement the hard systemic lessons largely avoided two decades ago. The Deepwater Horizon ...


Professional Responsibility In An Uncertain Profession: Legal Ethics In China, Judith A. Mcmorrow Oct 2010

Professional Responsibility In An Uncertain Profession: Legal Ethics In China, Judith A. Mcmorrow

Boston College Law School Faculty Papers

The rapidly expanding Chinese legal profession provides an extraordinary opportunity for the U.S. legal profession to test U.S. assumptions about legal ethics. This essay examines challenges facing Chinese legal education and the Chinese legal profession as it develops norms of legal ethics. This essay examines this process from the law school and law student’s perspective about legal ethics, and then briefly explores the effort to create norms of attorney conduct from a top-down perspective. Both a bottom-up and top-down view show the tremendous challenges facing the emerging Chinese legal culture in building a coherent model of lawyering ...


The Promise Of International Tax Scholarship And Its Implications For Research Design, Theory And Methodology, Diane M. Ring Oct 2010

The Promise Of International Tax Scholarship And Its Implications For Research Design, Theory And Methodology, Diane M. Ring

Boston College Law School Faculty Papers

What should international tax scholars be doing? Over the past two decades, international tax has grown both as a practice area and as a field of study. Scholars have begun devoting significant attention to the development, design, and implementation of international tax law. This activity is accompanied by a reflection on the scholarship and its goals, method and content. A review of modern international tax scholarship reveals that as the field has matured, international tax scholars have increasingly turned to other disciplines, especially social sciences, to draw upon their insights, ideas, and research to improve understanding of international tax policy ...


The Amt's Silver Lining, Brian D. Galle Oct 2010

The Amt's Silver Lining, Brian D. Galle

Boston College Law School Faculty Papers

The federal Alternative Minimum Tax has potentially salutary – and heretofore unrecognized – effects that counteract pathologies of state budgets over the business cycle. A taxpayer’s AMT liability increases with income, and acts to eliminate federal tax subsidies for state revenue-raising. Thus, as a state’s income grows and the AMT hits more state residents, state spending becomes more expensive in flush times as the federal tax subsidy for state and local taxes is reduced. Conversely, when state fiscal health deteriorates, the federal tax subsidy grows as fewer state residents fall under the AMT, boosting taxpayer support for state spending. This ...


Counseling Community Groups, Paul R. Tremblay Oct 2010

Counseling Community Groups, Paul R. Tremblay

Boston College Law School Faculty Papers

The training of lawyers for years has established ethical and practice protocols based upon an individual representation model, or, if the protocols contemplated a form of collective representation, they have envisioned formal, structured entities with powerful constituents. The good lawyers who represent the dispossessed, the exploited, and the powerless need to craft different protocols, ones which accept messier, less organized, and often contentious group representation. Writing about the ethical and political mission of “community lawyers” has flourished, but that scholarship has tended to elide some knotty practical questions about the lawyers’ professional responsibilities in their work with such groups. This ...


Optionality In Merger Agreements, Brian J.M. Quinn Oct 2010

Optionality In Merger Agreements, Brian J.M. Quinn

Boston College Law School Faculty Papers

The credit crisis of 2008 and the subsequent collapse of a number of high-profile acquisition transactions put a spotlight on contracting practices that embedded optionality into merger agreements by way of the reverse termination fee and its attendant triggers. This article examines whether reverse termination fees are a symmetrical response to the seller's judicially mandated fiduciary termination right and whether such fees represent an efficient transactional term. A series of Delaware cases over the last decade limited the degree to which buyers could rely on deal protection measures in merger agreements to prevent a seller from accepting a superior ...


What Leona Helmsley Can Teach Us About The Charitable Deduction, Ray D. Madoff Sep 2010

What Leona Helmsley Can Teach Us About The Charitable Deduction, Ray D. Madoff

Boston College Law School Faculty Papers

When Leona Helmsley, the New York hotel and real estate heiress, died in August 2007, she left a will naming both human and canine beneficiaries. However, one of the unnamed beneficiaries of this estate plan is surely the body of scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought into high relief policy issues regarding the appropriateness of the unlimited charitable deduction, particularly as it applies to perpetual private foundations.


Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2010

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...


Australian Capital Territory Economic, Social And Cultural Rights Research Project Report, Hilary Charlesworth, Andrew Byrnes, Renuka Thilagaratnam, Katharine G. Young Sep 2010

Australian Capital Territory Economic, Social And Cultural Rights Research Project Report, Hilary Charlesworth, Andrew Byrnes, Renuka Thilagaratnam, Katharine G. Young

Boston College Law School Faculty Papers

This Report presents the findings and recommendations of a research project established to examine whether the ACT Human Rights Act 2004 (HRA) should be amended to include explicit guarantees of economic, social and cultural rights (ESCR) and, if so, what impact this was likely to have on governance in the ACT. The project was funded under the Australian Research Council Linkage Project Scheme; the academic project partners were the Regulatory Institutions Network (RegNet) in the College of Asia and the Pacific of The Australian National University and the Australian Human Rights Centre, Faculty of Law, The University of New South ...


Avoiding The Avoidable: Why State Laws Need To Protect Kids From Airbags, Mary Ann Chirba Sep 2010

Avoiding The Avoidable: Why State Laws Need To Protect Kids From Airbags, Mary Ann Chirba

Boston College Law School Faculty Papers

Impact with a front passenger airbag engineered to stop a large statured, adult male from hitting the windshield risks devastating if not fatal harm for a child. "Avoiding the Avoidable: Why State Laws Need to Protect Kids from Airbags" proposes a simple solution: absent extenuating circumstances, require rear seating for child passengers. This article describes the mechanism of injury, examines the inadequacies and inconsistencies of current national and state efforts to reduce pediatric airbag risk, and proposes comprehensive "model" legislation to avoid this completely avoidable yet often fatal harm.


Erisa Preemption Of State “Play Or Pay” Mandates: How Ppaca Clouds An Already Confusing Picture, Mary Ann Chirba Aug 2010

Erisa Preemption Of State “Play Or Pay” Mandates: How Ppaca Clouds An Already Confusing Picture, Mary Ann Chirba

Boston College Law School Faculty Papers

From the introduction:

Although ERISA preemption was ranked among the top "eight pertinent issues" that needed to be addressed in order to achieve comprehensive health care reform, Congress opted to avoid it when it passed the Patient Protection and Affordable Health Care Act on March 23, 2010, and the Health Care and Education Reconciliation Act just one week later ("PPACA" or the "Act", collectively). Currently 180 million Americans receive employer-sponsored health benefits, and millions more will do so once PPACA takes full effect over the next few years. This expansion of employer based coverage, coupled with what the Act does ...


The Coming Fifth Amendment Challenge To Net Neutrality Regulation, Daniel A. Lyons Jul 2010

The Coming Fifth Amendment Challenge To Net Neutrality Regulation, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb Jul 2010

Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb

Boston College Law School Faculty Papers

Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing ḥudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence (idra’ū ʾl-ḥudūd biʾl-shubahāt): the “ḥudūd maxim.” Jurists of all periods reference this maxim widely. But whereas developed juristic works attribute it to Muḥammad in the form of a prophetic report (ḥadīth), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific provenance in ...


Red Mass: 2009 Homily, Gregory A. Kalscheur S.J. Jul 2010

Red Mass: 2009 Homily, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

This homily was delivered by Fr. Kalscheur at the Detroit Red Mass celebrated at Sts. Peter and Paul Church in Detroit, Michigan on September 29, 2009. The Red Mass (a Mass at which red vestments are worn, marking the beginning of the new judicial term and invoking the guidance of the Holy Spirit), is attended by judges, lawyers, and public officials of all faiths asking God’s blessings in their work as servants of the law seeking to work more effectively for justice and freedom for all. The homily invited those present to reflect on a critical question: who are ...


Farmers, Middlemen, And The New Rule Of Law Movement, Brian J.M. Quinn, Anh T.T. Vu Jul 2010

Farmers, Middlemen, And The New Rule Of Law Movement, Brian J.M. Quinn, Anh T.T. Vu

Boston College Law School Faculty Papers

This paper investigates the economic relationships between farmers and middlemen in Vietnam’s Mekong Delta and places it in the context of the new rule of law movement. The new rule of law movement, which has grown in the wake of the collapse of formerly centrally planned economies, argues that the rule of law is a prerequisite for economic growth and that transition economies can only succeed by adopting strong formal legal rights and institutions. Notwithstanding more than two decades of an aggressive rule of law reform program, Vietnam’s formal legal system remains weak. Using survey data from a ...


Taxation And Non-Discrimination: A Reconsideration, Hugh J. Ault, Jacques Sasseville Jun 2010

Taxation And Non-Discrimination: A Reconsideration, Hugh J. Ault, Jacques Sasseville

Boston College Law School Faculty Papers

No abstract provided.


Dawn Of The Dead? A Discussion Of Immortality And The Law: The Rising Power Of The American Dead, Ray D. Madoff May 2010

Dawn Of The Dead? A Discussion Of Immortality And The Law: The Rising Power Of The American Dead, Ray D. Madoff

Boston College Law School Faculty Papers

No abstract provided.


The Child As A Person: A Reaction To Elizabeth Bartholet’S International Adoption: The Human Rights Position, Paulo D. Barrozo May 2010

The Child As A Person: A Reaction To Elizabeth Bartholet’S International Adoption: The Human Rights Position, Paulo D. Barrozo

Boston College Law School Faculty Papers

No abstract provided.


Drawing Lines In Shifting Sands: The U.S. Supreme Court's Mixed Messages On Erisa Preemption Imperil Health Care Reform, Mary Ann Chirba May 2010

Drawing Lines In Shifting Sands: The U.S. Supreme Court's Mixed Messages On Erisa Preemption Imperil Health Care Reform, Mary Ann Chirba

Boston College Law School Faculty Papers

This article explains how and why the U.S. Supreme Court’s increasingly erratic preemption jurisprudence has fueled a health care system that routinely harms patients, frustrates health care providers, and derails state reform efforts. It begins by describing the mechanics of ERISA preemption, and then analyzes the Court’s 30 year odyssey from no preemption of state law claims against managed care payers, to broad preemption, retreating to limited preemption and, for now at least, trending again toward broad preemption. This is an extremely unstable area of the law which, at this point, demands not just an update but ...


Keep Charity Charitable, Brian D. Galle May 2010

Keep Charity Charitable, Brian D. Galle

Boston College Law School Faculty Papers

This Article responds to recent claims, most prominently by Malani, Posner, and Henderson, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer higher-powered incentives to cut costs. I argue, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other firms, because it would diminish the “warm ...


James Madison, Law Student And Demi-Lawyer, Mary Sarah Bilder May 2010

James Madison, Law Student And Demi-Lawyer, Mary Sarah Bilder

Boston College Law School Faculty Papers

We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison’s intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes ...


Three Takes On Global Justice, Frank J. Garcia May 2010

Three Takes On Global Justice, Frank J. Garcia

Boston College Law School Faculty Papers

Compares three different approaches to arguing for global justice, and suggests alternatives.


Note, A Free Pass For Foreign Firms? An Assessment Of Sec And Private Enforcement Against Foreign Issuers, Natalya Shnitser May 2010

Note, A Free Pass For Foreign Firms? An Assessment Of Sec And Private Enforcement Against Foreign Issuers, Natalya Shnitser

Boston College Law School Faculty Papers

While proponents of the bonding hypothesis have posited that foreign firms crosslist in the United States to signal compliance with the strict U.S. corporate governance regime, these scholars have taken the enforcement of U.S. securities laws largely for granted. This Note presents an empirical examination of previously unexplored data on the enforcement of U.S. securities laws against foreign issuers. The results suggest that relative to domestic issuers, foreign issuers in the United States have benefited not only from a more lax set of rules, but also from a more forgiving public enforcement agency. At the same time ...


Langdell And The Invention Of Legal Doctrine, Catharine P. Wells May 2010

Langdell And The Invention Of Legal Doctrine, Catharine P. Wells

Boston College Law School Faculty Papers

This paper addresses two related questions. The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts ...


In Re Preserving The Open Internet: Reply Comments Of Professor Daniel A. Lyons, Daniel A. Lyons Apr 2010

In Re Preserving The Open Internet: Reply Comments Of Professor Daniel A. Lyons, Daniel A. Lyons

Boston College Law School Faculty Papers

Reply Comments on FCC Proposed Rulemaking into Net Neutrality


Toward A Defense Of Fair Use Enablement, Or How U.S. Copyright Law Is Hurting My Daughter, Joseph P. Liu Apr 2010

Toward A Defense Of Fair Use Enablement, Or How U.S. Copyright Law Is Hurting My Daughter, Joseph P. Liu

Boston College Law School Faculty Papers

This Essay uses a personal anecdote to highlight a gap in current copyright law. Under current copyright doctrine, companies sued for direct copyright infringement are not generally able to assert the fair use arguments of their customers. Thus, for example, a photocopy shop sued for assembling course packs cannot argue that it is facilitating the fair use privileges of its student customers. This Essay argues that this approach is mistaken because it fails to take adequate account of the important role companies can play in practically enabling the fair use privileges of their customers. To fill this gap, this Essay ...