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Full-Text Articles in Law

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 ...


Four Unconstitutional Constitutions And Their Democratic Foundations, Richard Albert Oct 2017

Four Unconstitutional Constitutions And Their Democratic Foundations, Richard Albert

Boston College Law School Faculty Papers

The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. Invalidating a single amendment for violating the architectural core of a constitution is an extraordinary action, but it is occurring with increasing frequency around the world. But to call an entire constitution unconstitutional, however, seems different in both kind and degree. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and ...


The Unreasonable Seizures Of Shadow Deportations, Mary Holper Sep 2017

The Unreasonable Seizures Of Shadow Deportations, Mary Holper

Boston College Law School Faculty Papers

President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations.Two of these procedural tools, administrative removal and expedited removal, allow ...


Discriminating Against The Dead: How To Protect Muslim Cemeteries From Exclusionary Land Use Mechanisms, Christopher Cataldo Sep 2017

Discriminating Against The Dead: How To Protect Muslim Cemeteries From Exclusionary Land Use Mechanisms, Christopher Cataldo

Boston College Law Review

U.S. Muslims face virulent, entrenched opposition in constructing the cemeteries that allow them to bury their dead according to Islamic law and tradition. Despite state and federal laws designed to guard against acts of religious discrimination such as the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), local governments impede Muslim cemetery constructions via zoning ordinances and adjudicative permit denials. As a result of these efforts, Muslims experience unfair discrimination as local land control bodies unduly delay or block their attempts to build cemeteries. To better protect Muslims’ rights in land use disputes, this Note advocates for amendments ...


The Symmetry Principle, Bradley A. Areheart Sep 2017

The Symmetry Principle, Bradley A. Areheart

Boston College Law Review

Title VII provides symmetrical protection against discrimination in that both blacks and whites, and men and women may avail themselves of the law’s protections. In contrast, the Age Discrimination in Employment Act operates asymmetrically, shielding workers over the age of forty from discrimination yet offering no reciprocal protection for younger workers. Why do some antidiscrimination laws protect symmetrically while others do not? More importantly, why does this design choice matter? These are questions that scholars, courts, and legislators have generally ignored. This Article proceeds in two parts. First, it identifies symmetry as an important, yet frequently overlooked, way in ...


Saving Lives, Shalini Bhargava Ray Sep 2017

Saving Lives, Shalini Bhargava Ray

Boston College Law Review

When Alan Kurdi, a Syrian toddler, drowned in the Mediterranean while fleeing civil war in his home country, the world’s attention turned to the Syrian refugee crisis. Offers to transport and house refugees surged. Private boats set out on the Mediterranean Sea to rescue refugees dying in the water. A billionaire offered to purchase an island on which the refugees could live out their lives. This Article analyzes private humanitarian aid to asylum seekers, a subset of migrants whose claims for refugee protection have not yet been filed or adjudicated, and who typically travel without authorization. This Article determines ...


The Threads Of Justice: Economic Liberalization And The Secondhand Clothing Trade Between The U.S. And Haiti, Kelsey Gasseling Sep 2017

The Threads Of Justice: Economic Liberalization And The Secondhand Clothing Trade Between The U.S. And Haiti, Kelsey Gasseling

Boston College Law Review

After World War II, as economic liberalization spread across the globe through international negotiations like the General Agreement on Tariffs and Trade, so too did used clothing. Though many proponents of the trade laud its capacity to create employment opportunities in less developed countries, critics suggest it has a more insidious deleterious effect on local industry. To this day, however, little research has been done regarding the symbiotic relationship between trade liberalization and the secondhand clothing industry. Some economic scholars suggest that current approaches to liberal trade—unilateral trade preferences particularly—stymy, instead of stimulate sustainable and just economic growth ...


Sharing Economy Inequality: How The Adoption Of Class Action Waivers In The Sharing Economy Presents A Threat To Racial Discrimination Claims, Caitlin Toto Sep 2017

Sharing Economy Inequality: How The Adoption Of Class Action Waivers In The Sharing Economy Presents A Threat To Racial Discrimination Claims, Caitlin Toto

Boston College Law Review

In recent years, the sharing economy has pervaded the life of the consumer, challenging the regulatory and business status quo. Despite the pluralistic messages of many sharing economy companies, racial discrimination is a growing problem on peer-to-peer networks such as Uber and Airbnb. Victims of discrimination, however, have encountered an even greater opponent: class action waivers in arbitration agreements, which are omnipresent in sharing economy company contracts. Due to the inherent tie between class action and civil rights, racial discrimination claims in the sharing economy are held hostage by individual arbitration agreements. This Note argues that without action by Congress ...


Understanding The Public Trust Doctrine Through Due Process, Michael O'Loughlin Sep 2017

Understanding The Public Trust Doctrine Through Due Process, Michael O'Loughlin

Boston College Law Review

The public trust doctrine (“PTD”) could be a powerful tool for environmental lawyers. It protects the public’s right to use and access resources by placing them in trust with the state and guiding the sovereign’s discretion in their management. Although it lies inherent in sovereignty, the law scatters it across constitutional, statutory, and common law sources, hurting its effectiveness. Understanding the public’s beneficiary interest in this public trust as a due process protected property right would help resolve these failings by placing it under the umbrella of the U.S. Constitution’s guarantee against arbitrary deprivations of ...


From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman Sep 2017

From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman

Boston College Law Review

In recent years, numerous commentators have called for the National Collegiate Athletic Association (“NCAA”) to relax its rules prohibiting athlete pay. This movement to allow athletes to share in the revenues of college sports arises from the belief that college athletes sacrifice too much time, personal autonomy, and physical health to justify their lack of pay. It further criticizes the NCAA’s “no pay” rules for keeping the revenues derived from college sports “in the hands of a select few administrators, athletic directors, and coaches.” Nevertheless, opponents of “pay for play” contend that several problems will emerge from lifting the ...


Employer Liability For Non-Employee Discrimination, Dallan F. Flake Sep 2017

Employer Liability For Non-Employee Discrimination, Dallan F. Flake

Boston College Law Review

Discrimination against employees by customers, vendors, and other third parties is a serious issue that will likely become even more pressing in the near future. Increased workplace interactions between employees and non-employees, coupled with the societal shift toward subtle, covert, and sometimes even unconscious discrimination, mean non-employee discrimination is likely to become more pervasive—even as it becomes harder to detect. As this perfect storm brews, it is worth considering how judicial treatment of non-employee discrimination can be improved. I argue that one of the most important changes needed is for the law to cease treating discrimination by non-employees and ...


Letter To Orrin G. Hatch And Ron Wyden On Donor-Advised Funds, Douglas Kridler, Vikki Spruill, Dan Cardinali, Adam Meyerson Sep 2017

Letter To Orrin G. Hatch And Ron Wyden On Donor-Advised Funds, Douglas Kridler, Vikki Spruill, Dan Cardinali, Adam Meyerson

Law School Publications

Letter written on the behalf of a number of philanthropic and community foundations to Orrin G. Hatch, chairman of the United States Senate Committee on Finance and Ron Wyden, the ranking member of that committee. The letter was written in response to the July 17 letter by Ray Madoff and Roger Colinvaux, which advocated for changes in the tax code related to donor-advised funds. This letter argues against the changes suggested by Madoff and Colinvaux.


The Ethics Of Representing Founders, Paul R Tremblay Aug 2017

The Ethics Of Representing Founders, Paul R Tremblay

Boston College Law School Faculty Papers

Lawyers assisting entrepreneurial startups frequently work with individual founders before any formal organizational client materializes. In advising founders about such legal matters as whether to establish an entity, and if so which entity best fits the needs of the enterprise, as well as how to arrange the owners’ relationships within the business, the lawyer necessarily has an attorney-client relationship with someone. The prevailing scholarship about startup representation pays surprisingly little attention to the posture of the lawyer and her founder clients in the pre-organization context. This Article investigates the lawyer’s responsibilities and commitments in depth.

A lawyer working with ...


Letter To Orrin G. Hatch On Donor-Advised Funds, Ray D. Madoff, Roger Colinvaux Jul 2017

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

Law School Publications

Letter advising Orrin G. Hatch, Chairman of the United States Senate Committee on Finance, to consider reforms in the treatment of donor-advised funds under the tax code.


Cleaning Up The Standards Of The Mental Hygiene Law: State V. Dennis K. And Civil Commitment, Maria Benvenuto Jun 2017

Cleaning Up The Standards Of The Mental Hygiene Law: State V. Dennis K. And Civil Commitment, Maria Benvenuto

Boston College Journal of Law & Social Justice

On July 5, 2016, in State v. Dennis K., the Court of Appeals of New York upheld the civil commitment of two individuals in accordance with article 10 of the Mental Hygiene Law. The majority relied on the testimony of expert witnesses and the individuals’ past criminal records to classify them as possessing a “mental abnormality” that predisposes them to commit sexual offenses, a necessary element of a civil commitment finding. The court ultimately found the evidence presented sufficient to make this classification and indefinitely restrict the freedom of such individuals. In contrast, the dissent emphasized the lack of certainty ...


Walking On Eggshells In The Workplace: Denying Workers’ Compensation Liability Using The Employee Knowledge Standard In Ramirez-Trujillo V. Quality Egg, L.L.C., Christopher Cataldo Jun 2017

Walking On Eggshells In The Workplace: Denying Workers’ Compensation Liability Using The Employee Knowledge Standard In Ramirez-Trujillo V. Quality Egg, L.L.C., Christopher Cataldo

Boston College Journal of Law & Social Justice

On April 15, 2016, the Iowa Supreme Court held that employers in workers’ compensation cases could deny liability for medical expenses incurred by employees even if they did not give notice to the employee that expenses were no longer authorized. Employers can avoid liability by demonstrating that the employee knew or reasonably should have known that such expenses were no longer authorized at the time the employee incurred them. In reaching this decision, the Iowa Supreme Court reversed two lower court decisions and the workers’ compensation commissioner. Judge Daryl L. Hecht’s dissent argued against the majority’s new “employee ...


Trapped To Confess: State V. Gray And Arizona’S Outlier Entrapment Statute, Venus Chui Jun 2017

Trapped To Confess: State V. Gray And Arizona’S Outlier Entrapment Statute, Venus Chui

Boston College Journal of Law & Social Justice

On June 20, 2016, in State v. Gray, the Arizona Supreme Court held that for a defendant to invoke the defense of entrapment, he or she must affirmatively admit each element of the crime. The case emerged after Maverick Gray was arrested and charged for selling cocaine to an undercover police officer, and raised the entrapment defense at trial without disputing the government’s evidence of his guilt. The court explained that simply choosing not to challenge the evidence does not rise to the level of an affirmative admission. The dissent persuasively argued that Arizona’s entrapment statute is draconian ...


Mean Muggin’ No More: Detroit Free Press V. U.S. Dep’T Of Justice And A Non-Trivial Privacy Interest In Booking Photographs, Meghan Looney Jun 2017

Mean Muggin’ No More: Detroit Free Press V. U.S. Dep’T Of Justice And A Non-Trivial Privacy Interest In Booking Photographs, Meghan Looney

Boston College Journal of Law & Social Justice

On July 14, 2016, the U.S. Court of Appeals for the Sixth Circuit held that criminal defendants have a legitimate privacy interest in their booking photographs, thereby reversing and remanding a grant of summary judgment in favor of the Detroit Free Press’s request for the booking photographs of four police officers who had recently been indicted for bribery and drug conspiracy. In holding that the public disclosure of booking photographs may constitute an unwarranted invasion of personal privacy, the majority overturned twenty years’ worth of Sixth Circuit precedent. The court properly acknowledged that booking photographs convey a portrait ...


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

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

Boston College Journal of Law & Social Justice

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


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

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

Boston College Journal of Law & Social Justice

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


Marijuana, State Extraterritoriality, And Congress, Mark D. Rosen Jun 2017

Marijuana, State Extraterritoriality, And Congress, Mark D. Rosen

Boston College Law Review

The Trump administration inherits the Obama administration’s policy of under-enforcing federal marijuana laws and a nation with a patchwork of divergent state laws. Although allowing diversity and experimentation, such divergence may impose spillover costs to some states. Some states may attempt to address these costs by exercising extraterritorial regulatory powers on their citizens. Although it is unclear and a matter of dispute whether and to what extent states have such extraterritorial authority, this Article shows that it is certain that Congress has power to set the bounds of state extraterritorial regulation, subject to only limited constitutional restraints. The Article ...


Marijuana Legalization And Nosy Neighbor States, Alex Kreit Jun 2017

Marijuana Legalization And Nosy Neighbor States, Alex Kreit

Boston College Law Review

As more states proceed with marijuana legalization laws, questions have arisen about how to accommodate those states that wish to retain prohibition. For instance, in 2014, Oklahoma and Nebraska unsuccessfully sued Colorado based on the spillover effects that Colorado’s marijuana legalization law had on its neighboring states. This article asserts that there are several reasons why state marijuana legalization laws are unlikely to have a large effect on neighboring states. First, marijuana is not a previously unobtainable good being introduced into the stream of commerce, as it is already available through the black market inexpensively. Second, legalization laws have ...


Budding Conflicts: Marijuana's Impact On Unsettled Questions Of Tribal-State Relations, Katherine J. Florey Jun 2017

Budding Conflicts: Marijuana's Impact On Unsettled Questions Of Tribal-State Relations, Katherine J. Florey

Boston College Law Review

In the wake of a December 2014 decision by the Department of Justice to deprioritize enforcement of federal marijuana laws against tribes as well as states, many tribes have reevaluated their policies toward marijuana. Tribal attitudes toward marijuana are diverse; some tribes regard marijuana as a public health menace, whereas others see it as a source of economic opportunity. Where tribal policies are significantly more or less restrictive than those of the surrounding state, tribal-state relations have often suffered friction. The problem is particularly acute given the jurisdictional uncertainty that characterizes Indian country and the absence of any equivalent to ...


Introduction: Marijuana Laws And Federalism, Erwin Chemerinsky Jun 2017

Introduction: Marijuana Laws And Federalism, Erwin Chemerinsky

Boston College Law Review

No abstract provided.


Policy, Preemption, And Pot: Extra-Territorial Citizen Jurisdiction, Gabriel J. Chin Jun 2017

Policy, Preemption, And Pot: Extra-Territorial Citizen Jurisdiction, Gabriel J. Chin

Boston College Law Review

In contemporary America, legislators send messages about values through symbolic legislation and lawsuits. One conflict is between states where marijuana is legal and others that continue to ban it. This Article evaluates what might happen if anti-marijuana states made it illegal for their citizens to purchase or use marijuana, borrowing a page from the playbook of activists opposed to reproductive choice who propose that if Roe v. Wade is overturned, individuals could be prohibited from traveling to another state for the purpose of obtaining an abortion. Although such laws would be hard to enforce, they still present important questions of ...


Reefer Madness: How Non-Legalizing States Can Revamp Dram Shop Laws To Protect Themselves From Marijuana Spillover From Their Legalizing Neighbors, Jessica Berch Jun 2017

Reefer Madness: How Non-Legalizing States Can Revamp Dram Shop Laws To Protect Themselves From Marijuana Spillover From Their Legalizing Neighbors, Jessica Berch

Boston College Law Review

Reefer madness is sweeping the nation. Despite a federal ban on marijuana, states have begun to legalize medical and, increasingly, recreational use of the drug. As more states legalize marijuana, their non-legalizing neighbors have seen a distinct uptick in marijuana possession and use—and an attendant increase in crime and accidents. In December 2014, Nebraska and Oklahoma, non-legalizing states that border Colorado, a trail-blazer in the full-legalization movement, requested permission to file suit in the U.S. Supreme Court over their neighbor’s lax marijuana controls, which allow cannabis to come into their states. The Supreme Court denied leave to ...


A General Theory Of Preemption: With Comments On State Decriminalization Of Marijuana, Lea Brilmayer Jun 2017

A General Theory Of Preemption: With Comments On State Decriminalization Of Marijuana, Lea Brilmayer

Boston College Law Review

Marijuana decriminalization is a hotly debated topic, which has nonetheless seen popular support in recent years. Current federal law (the Controlled Substances Act) conflicts with many state decriminalization efforts, raising the obvious question of federal preemption. The Supreme Court has failed to provide a clear answer on how much federal law preempts state marijuana decriminalization laws. This Article identifies the foundational principles of vertical and horizontal preemption, as well as various unanswered questions regarding these doctrines. It then applies these questions to marijuana decriminalization. Ultimately, it argues that there is a weak case for vertical or horizontal preemption in the ...


One Toke Too Far: The Demise Of The Dormant Commerce Clause's Extraterritoriality Doctrine Threatens The Marijuana-Legalization Experiment, Chad Deveaux Jun 2017

One Toke Too Far: The Demise Of The Dormant Commerce Clause's Extraterritoriality Doctrine Threatens The Marijuana-Legalization Experiment, Chad Deveaux

Boston College Law Review

This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (“DCC”) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the State.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs ...