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Full-Text Articles in Law

Connecticut’S Evolving Views Of Riparian Rights And The Public Trust, Terence H. Mcallister Jan 2018

Connecticut’S Evolving Views Of Riparian Rights And The Public Trust, Terence H. Mcallister

Boston College Environmental Affairs Law Review

Waterbury v. Washington came to the Connecticut Supreme Court as a dispute over water rights that could have been resolved via a number of statutory or common law doctrines. Instead, the court sought to articulate a uniform theory of riparian law in Connecticut, acknowledging all of these competing doctrines. This uniform theory was one of regulated riparianism. After articulating this standard, the court left many decisions to be worked out by lower courts. Since Waterbury was decided, those lower courts have struggled to incorporate a view that reconciles the public trust doctrine in light of Connecticut’s statutory scheme. Many ...


An Electrifying Expansion Of Judicial Review Of Agency Actions In Pseg Energy Resources & Trade Llc, Anna Nikolayeva Jan 2018

An Electrifying Expansion Of Judicial Review Of Agency Actions In Pseg Energy Resources & Trade Llc, Anna Nikolayeva

Boston College Environmental Affairs Law Review

The Federal Energy Regulatory Commission (“FERC”) issues orders on electricity market auction results to ensure that electricity rates are just and reasonable. FERC issued an order accepting the results of the 2008 ISO New England forward capacity auction. PSEG Energy Resources (“PSEG”), a participant in the auction, challenged the order on the grounds that it resulted in undue discrimination for the most necessary resources for reliability and violated the basic market policy goals. When FERC rejected this challenge, PSEG petitioned for review of the FERC order. The United States Court of Appeals for the D.C. Circuit reviewed the FERC ...


The Administrative Procedure Act And How The “Final Rule” Designation Allows Agencies To Perpetuate Harm By Failing To Act, Julia Eaton Jan 2018

The Administrative Procedure Act And How The “Final Rule” Designation Allows Agencies To Perpetuate Harm By Failing To Act, Julia Eaton

Boston College Environmental Affairs Law Review

In order to preserve the historic authenticity of Alexander Hamilton’s only home, concerned citizens, community groups, and the National Park Service (NPS) created a plan to move Hamilton’s Home. The Friends of Hamilton Grange (“Friends”) were created to assist the NPS in that process. The Friends never filed official paperwork to become an official “friends group” of the NPS. After years of planning, the NPS approved plans for Hamilton’s home that conflicted with the interests of the Friends. The Friends claimed that the NPS did not properly consult with them throughout the planning process and the undeveloped ...


Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone Jan 2018

Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone

Boston College Environmental Affairs Law Review

In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act (“FWPCA”). In this case, the United States Navy violated the FWPCA by discharging munitions—a pollutant as defined by the statute—during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy ...


Non-Enforcement Takings, Timothy M. Mulvaney Jan 2018

Non-Enforcement Takings, Timothy M. Mulvaney

Boston College Law Review

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even ...


The Price Tag On Designer Babies: Market Share Liability, Boston College Law Review Staff Jan 2018

The Price Tag On Designer Babies: Market Share Liability, Boston College Law Review Staff

Boston College Law Review

The prospect of genetically modifying humans has loomed over the public for decades. Now, science fiction is becoming reality. New technology and expanding research are positioned to make genetic alteration a routine, pre-conception appointment. For several years, China has been experimenting with germline editing on non-viable human embryos. In April 2016, the UK also approved a group of scientists to begin similar research. In the United States, genetic engineering is a multibillion-dollar industry. Although ethical debates over human genetic modification have checked the industry, the potential for clinical trials has become a reality as companies race to dominate the technology ...


The Architecture Of Contract Innovation, Matthew Jennejohn Jan 2018

The Architecture Of Contract Innovation, Matthew Jennejohn

Boston College Law Review

Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It ...


The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan Remy Nash Jan 2018

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan Remy Nash

Boston College Law Review

No law in the United States requires or prohibits customers from tipping employees for satisfactory service. Tip income is typically regarded as belonging to employees and may not be appropriated by the employer. Tipping is a widespread phenomenon in certain settings–restaurants, hotels, and gambling casinos. It is a form of performance-based variable compensation that is generally not found elsewhere in this country, where employees generally prefer fixed incomes over a defined period. As a general matter, our laws allow tipping but regulate the sharing of tip income among employees. In the restaurant setting, tip-pooling occurs when tips received by ...


Remaking Making: Integrating Self-Replicating Technologies With The Exhaustion Doctrine, Adanna Uwazurike Jan 2018

Remaking Making: Integrating Self-Replicating Technologies With The Exhaustion Doctrine, Adanna Uwazurike

Boston College Law Review

Self-replicating technologies such as genetically modified organisms have unquestionably improved the farming industry. In order to ensure continued innovation in this area, the law has increasingly established protections for this technology. Although the exhaustion doctrine serves as a limit to a patent holder’s rights, the application of the current patent infringement regime may be over-inclusive as self-replicating technologies continue to advance. This Note identifies Bowman v. Monsanto as a recent example of how self-replicating patented products could lead to blanket infringement liability, including for innocent infringers. This Note recommends that the definition of “making” be redefined to include only ...


Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker Jan 2018

Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker

Boston College Law Review

In an era of unprecedented profitability, expansion, and popularity of American professional sports leagues, it seems outrageous that cities and municipalities across the United States would continue to subsidize the funding of new stadiums for wealthy sports franchises. Yet despite the economic obstacles facing many of these cities and municipalities, the gratuitous public funding of stadiums across the United States persists. This reality stems from the extraordinary bargaining power that professional sports franchises maintain over the cities in which they are located. Indeed, threating to relocate a franchise brings forth a litany of cities that are ready and willing to ...


The Federal Equity Power, Michael T. Morley Jan 2018

The Federal Equity Power, Michael T. Morley

Boston College Law Review

Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as ...


Organic Corporate Governance, Robert C. Bird, Stephen Kim Park Jan 2018

Organic Corporate Governance, Robert C. Bird, Stephen Kim Park

Boston College Law Review

A publicly-held corporation maintains a system of governance through separation of ownership and control of the firm. Under this framework, corporations attract capital and repatriate profits to their shareholders under the authority vested in the board of directors. However, significant evidence exists that Chief Executive Officers (“CEOs”) are commonly driven by self-interest, boards often indulge CEOs, and shareholders find it difficult to monitor management. Many recent reforms have sought to improve corporate governance through regulatory interventions that empower shareholders. This Article identifies the limitations of this approach and advances a new model that looks within the “black box” of the ...


“Warning: Use May Result In Cruel And Unusual Punishment”: How Administrative Law And Adequate Warning Labels Can Bring About The Demise Of Lethal Injection, Julia Eaton Jan 2018

“Warning: Use May Result In Cruel And Unusual Punishment”: How Administrative Law And Adequate Warning Labels Can Bring About The Demise Of Lethal Injection, Julia Eaton

Boston College Law Review

Lethal injection, although currently the preferred method of execution in the United States, causes more botched executions than any other method. Despite recorded instances of extreme pain and suffering, the United States Food and Drug Administration (“FDA”) does not regulate lethal injection drugs for safety and effectiveness because their use occurs “off-label” and thus outside of the purview of the FDA’s regulatory scope. Challengers to the FDA’s lack of regulation have thus far been unsuccessful in the courts due to the deference that the courts give to agency decisions. This Note discusses the ways in which administrative law ...


Restoring Trade’S Social Contract, Frank J. Garcia, Timothy Meyer Jan 2018

Restoring Trade’S Social Contract, Frank J. Garcia, Timothy Meyer

Boston College Law School Faculty Papers

As we write, the United States, Canada, and Mexico are meeting in Washington, D.C. to renegotiate the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has ...


Coding With The Building Blocks Of The Web, Nick Szydlowski Jan 2018

Coding With The Building Blocks Of The Web, Nick Szydlowski

Boston College Law School Faculty Papers

No abstract provided.


Brief Of Amici Curiae Finance Regulation Scholars In Support Of Plaintiff's Motion For A Preliminary Injunction In English V. Trump, Patricia A. Mccoy Dec 2017

Brief Of Amici Curiae Finance Regulation Scholars In Support Of Plaintiff's Motion For A Preliminary Injunction In English V. Trump, Patricia A. Mccoy

Boston College Law School Faculty Papers

Professor McCoy was the lead author of an amicus brief in support of the lawsuit by CFPB Deputy Director Leandra English against the Trump Administration, asserting that she lawfully became the Acting Director of the Consumer Financial Protection Bureau under the Dodd-Frank Act.


Cybersecurity And Tax Information: A Vicious Cycle?, Diane Ring Dec 2017

Cybersecurity And Tax Information: A Vicious Cycle?, Diane Ring

Boston College Law School Faculty Papers

A review of Michael Hatfield, Cybersecurity and Tax Reform, 93 Ind. L.J., scheduled to be published in Spring 2018.


The Unicorn Governance Trap, Renee Jones Dec 2017

The Unicorn Governance Trap, Renee Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Corporate Tax Avoidance And Honoring The Fiduciary Duties Owed To The Corporation And Its Stockholders, Eric C. Chaffee, Karie Davis-Nozemack Nov 2017

Corporate Tax Avoidance And Honoring The Fiduciary Duties Owed To The Corporation And Its Stockholders, Eric C. Chaffee, Karie Davis-Nozemack

Boston College Law Review

Corporate tax avoidance is a pressing issue of both national and international concern. Corporations usually claim that they are legally required to engage in aggressive tax strategies. But this Article proves that claim is incorrect when based upon the fiduciary duties owed to the corporation and its stockholders. Directors and other corporate managers often look to the classic case of Dodge v. Ford, which is ubiquitous in corporate law from the boardroom to the courtroom, as a North Star that guides them toward and defines their fiduciary duties to the corporation and its stockholders. In Dodge, the court held, “A ...


The Public Interest In Corporate Settlements, Brandon L. Garrett Nov 2017

The Public Interest In Corporate Settlements, Brandon L. Garrett

Boston College Law Review

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and ...


The Justice Against Sponsors Of Terrorism Act: An Infringement On Executive Power, Dan Cahill Nov 2017

The Justice Against Sponsors Of Terrorism Act: An Infringement On Executive Power, Dan Cahill

Boston College Law Review

In the more than sixteen years since September 11, 2001, the United States has resolved, through policy at home and abroad, to vindicate the heroes and victims of that attack. From the creation of the Department of Homeland Security, to the raid that resulted in the death of Osama Bin Laden, the shockwaves of 9/11 have reverberated through America’s domestic and foreign policy ever since. In the only veto override of the Obama presidency, the 114th U.S. Congress brought the Justice Against Sponsors of Terrorism Act (“JASTA”) into force, intending to provide U.S. citizens with a ...


Changing Welfare As We Know It, Again: Reforming The Welfare Reform Act To Provide All Drug Felons Access To Food Stamps, Meghan Looney Paresky Nov 2017

Changing Welfare As We Know It, Again: Reforming The Welfare Reform Act To Provide All Drug Felons Access To Food Stamps, Meghan Looney Paresky

Boston College Law Review

Approximately half a million Americans are currently incarcerated for drug convictions at the state and federal level. President Clinton’s 1996 enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”) affects this enormous class of individuals by including a provision that places a lifetime ban on access to welfare benefits, including food stamps, for individuals who have been convicted of a drug felony. Although there is an option within PRWORA for states to modify or opt out of the provision, six states and territories still enforce the full lifetime ban, and most states have some form of the ...


Stopping Illegal Fishing And Seafood Fraudsters: The Presidential Task Force’S Plan On Tackling Iuu Fishing And Seafood Fraud, Thomas Lampert Nov 2017

Stopping Illegal Fishing And Seafood Fraudsters: The Presidential Task Force’S Plan On Tackling Iuu Fishing And Seafood Fraud, Thomas Lampert

Boston College Law Review

Worldwide seafood markets have a major problem: too often, the seafood listed on the menu is of a different species than what is served. This phenomenon—known as seafood fraud—and the related practice of illegal, unreported, and unregulated fishing threatens the sustainability of our oceans, poses health risks to consumers, and forces consumers to pay a high price for a cheap product. Previous domestic and international efforts to combat this issue have failed for a number of reasons, including the international nature of the industry, a byzantine supply chain, the large number of entities responsible for combatting the issue ...


A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller Nov 2017

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Boston College Law Review

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute ...


The Promotion Of Personhood Is A Principal Good Of Law, Scott T. Fitzgibbon Nov 2017

The Promotion Of Personhood Is A Principal Good Of Law, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

A great good promoted by a well constructed legal system is the protection and promotion of character. Many other purposes prove to be justifiable, if at all, based on their instrumentality to this good.

When guided by this thesis, jurisprudence brings the discussion of law – what law is and what law ought to be – into constant conversation with anthropology: the perennial inquiry which our species conducts into the nature of the person.


Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens Nov 2017

Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens

Boston College Law School Faculty Papers

Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.


A New Mens Rea For Rape: More Convictions And Less Punishment, Kari E. Hong Oct 2017

A New Mens Rea For Rape: More Convictions And Less Punishment, Kari E. Hong

Boston College Law School Faculty Papers

There is no doubt that the law of rape is in need of reform. Compared to other crimes, reported rapes are convicted at 1/3 the rate of robberies and 1/6 the rate of assaults. Because knowing the identity of an assailant should lead to more, not fewer, convictions, this low conviction rate then is surprising given that acquaintance rapes—where the attacker is known to the victim—account for 80% of all rapes. Criminal law serves a vital purpose when it can clearly define criminal conduct and separate it from lawful activity. To effectively draw this line, criminal ...


Letter To Orrin G. Hatch And Ron Wyden On Donor-Advised Funds, Ray D. Madoff, Roger Colinvaux Oct 2017

Letter To Orrin G. Hatch And Ron Wyden On Donor-Advised Funds, Ray D. Madoff, Roger Colinvaux

Law School Publications

Letter to Orrin G. Hatch, chairman of the United States Senate Committee on Finance and Ron Wyden, the ranking member of that committee. This letter was a response to a September 6 letter from the representatives of charitable foundations, which in turn responded to a July 17 letter from Madoff and Colinvaux. The subject of the letter is a set of proposed changes, proposed by Madoff and Colinvaux, to the tax code related to donor-advised funds.


Single-Subject Constitutional Amendments, Richard Albert Oct 2017

Single-Subject Constitutional Amendments, Richard Albert

Boston College Law School Faculty Papers

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtually impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of ...


Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R Tremblay Oct 2017

Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R Tremblay

Boston College Law School Faculty Papers

Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and ...