Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Boston College Law School

Discipline
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 7829

Full-Text Articles in Law

The Constitution To The Constitution, Mary Sarah Bilder Sep 2018

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


How To End “Illegal Immigration”, Kari E. Hong Sep 2018

How To End “Illegal Immigration”, Kari E. Hong

Boston College Law School Faculty Papers

Since President Trump has taken office, it is clearer than ever that there are two ways to end “illegal immigration.” The first route — started by President Obama and ratcheted up by President Trump with relentless cruelty — is an actual effort to deport millions and exclude millions more. The second is to legalize those without status who have been, are, and will continue to contribute to America’s families, communities, and future.

This essay argues that the latter choice, restoring the paths to legalization that once were part of our nation’s laws, is the only realistic way forward to restore ...


How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones Aug 2018

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.


The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin Aug 2018

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Boston College Law School Faculty Papers

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup ...


Response Regarding The Bureau’S Consumer Complaint And Consumer Inquiry Handling Processes (Docket No. Cfpb-2018-0014), Kathleen Engel, Mary Spector, Financial Regulation And Consumer Protection Scholars And Former Regulators Jul 2018

Response Regarding The Bureau’S Consumer Complaint And Consumer Inquiry Handling Processes (Docket No. Cfpb-2018-0014), Kathleen Engel, Mary Spector, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response discussing whether the Consumer Federal Protection Bureau should change its processes for dealing with consumer complaints and consumer inquiries.


Response Regarding Bureau Financial Education Programs (Docket No. Cfpb-2018-0015), Carly Urban, J. Michael Collins, Stephanie Moulton, Financial Regulation And Consumer Protection Scholars And Former Regulators Jul 2018

Response Regarding Bureau Financial Education Programs (Docket No. Cfpb-2018-0015), Carly Urban, J. Michael Collins, Stephanie Moulton, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response discussing whether the Consumer Federal Protection Bureau should continue its financial education programs.


Response Regarding Bureau Guidance And Implementation Support (Docket No. Cfpb-2018-0013), Adam J. Levitin, Financial Regulation And Consumer Protection Scholars And Former Regulators Jul 2018

Response Regarding Bureau Guidance And Implementation Support (Docket No. Cfpb-2018-0013), Adam J. Levitin, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

No abstract provided.


New Heights, New Uses, And New Questions: Can Individuals Enforce Their Property Rights Against The Impending Rise Of Low-Flying Civilian Drones?, Thomas Carlton Jul 2018

New Heights, New Uses, And New Questions: Can Individuals Enforce Their Property Rights Against The Impending Rise Of Low-Flying Civilian Drones?, Thomas Carlton

Boston College Law Review

By 2020, there will be at least seven million civilian drones flying in the low-altitude airspace above the United States. Civilian drones include unmanned aerial vehicles operated by both private individuals for recreational and business entities for commercial purposes. While this budding technology has the potential to be a positive influence on society as a whole, civilian drone regulation at both the state and federal level lags behind growing drone usage across the country. As of now, the Federal Aviation Administration has administered a small rule that provides some regulation on the use of civilian drones. Many questions remain, however ...


The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva Jul 2018

The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva

Boston College Law Review

This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the antifraud provisions of the U.S. securities laws. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of ...


Closing The Regulatory Gap For Synthetic Nicotine Products, Patricia J. Zettler, Natalie Hemmerich, Micah L. Berman Jul 2018

Closing The Regulatory Gap For Synthetic Nicotine Products, Patricia J. Zettler, Natalie Hemmerich, Micah L. Berman

Boston College Law Review

In July 2017 the U.S. Food and Drug Administration announced a new “comprehensive plan for tobacco and nicotine regulation.” This plan focuses on making cigarettes less addictive while facilitating the development of alternative, and less-harmful, nicotine-containing products. This approach holds promise, and the public health stakes could not be higher—smoking is the leading cause of preventable death in the United States, resulting in roughly 480,000 deaths per year. But a new consumer product is emerging that could upset the FDA’s plans for a well-balanced regulatory scheme: synthetic nicotine. Synthetic nicotine products currently fall into a regulatory ...


The New Family Freedom, Emily J. Stolzenberg Jul 2018

The New Family Freedom, Emily J. Stolzenberg

Boston College Law Review

In family law, “autonomy” has traditionally meant freedom from state interference in one’s intimate life. This Article describes an emergent, libertarian vision of autonomy as property rights that also demands freedom from other family members. This conception, “choice about obligations,” holds redistribution of resources between intimates to be illegitimate unless the richer party “chose” to take on financial obligations ex ante by ceremonially marrying or formally contracting. But as more people conduct their intimate lives outside these legal institutions, choice about obligations increasingly collides with another, more fundamental, family law principle: the imperative to “privatize dependency,” i.e., to ...


Fair Use Avoidance In Music Cases, Edward Lee Jul 2018

Fair Use Avoidance In Music Cases, Edward Lee

Boston College Law Review

This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even ...


A Slap On The Wrist: Combatting Russia’S Cyber Attack On The 2016 U.S. Presidential Election, Christina Lam Jul 2018

A Slap On The Wrist: Combatting Russia’S Cyber Attack On The 2016 U.S. Presidential Election, Christina Lam

Boston College Law Review

On June 14, 2016, suspicions emerged that Russia launched a cyber attack on the U.S. Democratic National Committee in the midst of an extremely contentious presidential election season. The damage was extensive, occurring over a series of months and resulting in numerous leaks of highly sensitive information regarding Democratic Presidential Candidate Hillary Clinton. After it was verified that Russia was behind the cyber attack, President Barack Obama relied on general and anachronistic principles of international law to issue a grossly ineffective response. Russia’s cyber attack and the U.S. response thus highlighted the ways in which international law ...


Healthcare Promises For Public Employees, Natalya Shnitser Jul 2018

Healthcare Promises For Public Employees, Natalya Shnitser

Boston College Law School Faculty Papers

State and local governments have promised nearly $1 trillion in retiree healthcare benefits to public employees. Although retiree healthcare benefits represent a form of compensation, historically, state and local governments have not set aside any money to pay for the promised benefits. Compensating employees with promises of future benefits has enabled state legislatures to use public dollars for other priorities, while ignoring the growing liabilities associated with the healthcare promises. As these liabilities have come due, they have strained state and local budgets. Some public employers have simply cut the benefits, and public employees have had limited recourse to hold ...


Response Regarding Inherited Regulations And Inherited Rulemaking Authorities (Docket No. Cfpb-2018-0012), Kathleen Engel, Financial Regulation And Consumer Protection Scholars And Former Regulators Jun 2018

Response Regarding Inherited Regulations And Inherited Rulemaking Authorities (Docket No. Cfpb-2018-0012), Kathleen Engel, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response offering comment on the Consumer Federal Protection Bureau's inherited regulations and inherited rulemaking authorities.


The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder Jun 2018

The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder

Boston College Law School Faculty Papers

This article analyzes the Robert Morris library, the only known extant, antebellum, African American-owned library. The seventy-five titles, including two unique pamphlet compilations, reveal Morris’s intellectual commitment to full citizenship, equality, and participation for people of color. The article provides a model for the interpretation of lawyers' libraries.


Response Regarding Adopted Regulations (Docket No. Cfpb-2018-0011), Patricia Mccoy, Financial Regulation And Consumer Protection Scholars And Former Regulators Jun 2018

Response Regarding Adopted Regulations (Docket No. Cfpb-2018-0011), Patricia Mccoy, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response offering comment on the Consumer Federal Protection Bureau's adopted regulations and new rulemaking authorities.


Response Regarding Bureau Rulemaking Processes (Docket No. Cfpb-2018-0009), Patricia A. Mccoy, Financial Regulation And Consumer Protection Scholars And Former Regulators Jun 2018

Response Regarding Bureau Rulemaking Processes (Docket No. Cfpb-2018-0009), Patricia A. Mccoy, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response discussing whether the Consumer Federal Protection Bureau should alter its procedures for adopting new rules to protect consumers.


Response Regarding Bureau Public Reporting Practices Of Consumer Complaint Information (Docket No. Cfpb-2018-0006), Pamela Foohey, Angela K. Littwin, Amy J. Schmitz, Financial Regulation And Consumer Protection Scholars And Former Regulators Jun 2018

Response Regarding Bureau Public Reporting Practices Of Consumer Complaint Information (Docket No. Cfpb-2018-0006), Pamela Foohey, Angela K. Littwin, Amy J. Schmitz, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response discussing whether the Consumer Federal Protection Bureau should take down its consumer complaint database.


Response Regarding Bureau External Engagements (Docket No. Cfpb-2018-0005), Cathy Lesser Mansfield, Financial Regulation And Consumer Protection Scholars And Former Regulators May 2018

Response Regarding Bureau External Engagements (Docket No. Cfpb-2018-0005), Cathy Lesser Mansfield, Financial Regulation And Consumer Protection Scholars And Former Regulators

CFPB Comments by Scholars & Regulators

Response discussing whether the Consumer Federal Protection Bureau should change the way it reaches out to public and the financial industry.


Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney May 2018

Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney

Boston College Law Review

In recent years, there has been an increase in the growth of the sports industry globally. With it has come the growth of global sports arbitration. The Court of Arbitration for Sport (“CAS”), created in part because of the increase in sport-related arbitration, is designed to promote efficiency and uniformity in the resolution of disputes. Despite the noteworthy objectives of the CAS, recent developments, such as the supplement scandal surrounding the Essendon Football Club of the Australian Football League, highlight the pressure that endures between individual athletes and sport governing bodies. This pressure is especially clear in instances where athletes ...


Polar Opposites: Assessing The State Of Environmental Law In The World's Polar Regions, Mark P. Nevitt, Robert V. Percival May 2018

Polar Opposites: Assessing The State Of Environmental Law In The World's Polar Regions, Mark P. Nevitt, Robert V. Percival

Boston College Law Review

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet these regions differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System, a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets ...


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 ...


The Burgeoning “Biorights Movement”: Its Legal Basis, What’S At Stake, And How To Respond, Mark A. Hayden May 2018

The Burgeoning “Biorights Movement”: Its Legal Basis, What’S At Stake, And How To Respond, Mark A. Hayden

Boston College Law Review

The advent of genetic and genomic technologies has the power to transform the understanding, prevention, and treatment of disease on a scale unprecedented in modern medicine. The promise of the era of precision medicine risks being tempered by the emergence of what is increasingly being referred to as the “biorights movement.” Of particular concern is the growing trend of individuals refusing to contribute their biological material to research studies absent some form of monetary compensation. Recently announced, but yet to be implemented, regulations seek to mitigate some of the potentially harmful and progress-impeding positions advanced by the biorights movement. The ...


Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Stephanie H. Barclay, Mark L. Rienzi May 2018

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Stephanie H. Barclay, Mark L. Rienzi

Boston College Law Review

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will ...


Understanding "Sanctuary Cities", Christopher N. Lasch, R. Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai, Elizabeth M. Mccormick, Juliet P. Stumpf May 2018

Understanding "Sanctuary Cities", Christopher N. Lasch, R. Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai, Elizabeth M. Mccormick, Juliet P. Stumpf

Boston College Law Review

In the wake of President Trump’s election, a growing number of local jurisdictions around the country have sought to disentangle their criminal justice apparatus from federal immigration enforcement efforts. These localities have embraced a series of reforms that attempt to ensure immigrants are not deported when they come into contact with the criminal justice system. The Trump administration has labeled these jurisdictions “sanctuary cities” and vowed to “end” them by, among other things, attempting to cut off their federal funding.

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law ...


The Naked Truth: Insufficient Coverage For Revenge Porn Victims At State Law And The Proposed Federal Legislation To Adequately Redress Them, Meghan Fay May 2018

The Naked Truth: Insufficient Coverage For Revenge Porn Victims At State Law And The Proposed Federal Legislation To Adequately Redress Them, Meghan Fay

Boston College Law Review

The distribution of revenge porn is a cyber-bullying phenomenon that has proliferated on the Internet. The nonconsensual sharing of sexually explicit photographs and videos causes irreparable harm to revenge porn victims. The current state of the law, however, does little to redress the damage. Tort claims are often unsuccessful because many victims do not have the resources necessary to initiate a lawsuit. Furthermore, federal law grants operators of revenge porn websites immunity from state tort claims. In an effort to fill this gap in the law, many states have made changes or additions to their criminal statutes. To date, thirty-eight ...


When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes May 2018

When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes

Boston College Law Review

In 2017, in Bahtuoh v. Smith, the Eighth Circuit held that a criminal defendant’s counsel was not ineffective for promising the jury that the defendant would testify, but failing to deliver on that promise. This Comment argues that the Eighth Circuit’s decision is in line with the decisions of other circuits in ineffective assistance of counsel cases where counsel promised the defendant’s testimony but later reneged on that promise. Courts should consider in their analysis, however, the impact such a decision may have on the jury, and that a stricter standard for evaluating counsel’s trial performance ...


A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo May 2018

A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo

Boston College Law Review

On February 27, 2017, in In re Cowen, the U.S. Court of Appeals for the Tenth Circuit held that only affirmative actions to either obtain possession or exercise control over property of the bankruptcy estate constitute violations of the automatic stay provision. In doing so, the court concluded that the passive retention of an asset that was acquired pre-petition was not a violation of the automatic stay, and that the creditor had no obligation to relinquish the asset to the bankruptcy estate. This Comment argues that the Tenth Circuit misinterpreted the automatic stay provision of the Bankruptcy Code, disregarding ...


Eleventh Circuit Prematurely Applied The Rule Of Lenity In United States V. Izurieta, C. Alex Dilley May 2018

Eleventh Circuit Prematurely Applied The Rule Of Lenity In United States V. Izurieta, C. Alex Dilley

Boston College Law Review

The statute that prohibits smuggling goods into the United States, 18 U.S.C. § 545, requires proof that a defendant knowingly or fraudulently imported merchandise or facilitated the transport of such merchandise “contrary to law.” In 2013, in United States v. Izurieta, the U.S. Court of Appeals for the Eleventh Circuit held that a regulatory violation carrying only civil implications could not serve as the underlying offense for the smuggling statute’s contrary to law provision given the felony criminal penalties associated with a violation of the statute. The Eleventh Circuit’s decision diverged from the 1994 and 2008 ...