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Boston College Law School Faculty Papers

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Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2020-0028, Patricia Mccoy Oct 2020

Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2020-0028, Patricia Mccoy

Boston College Law School Faculty Papers

In this comment Professor McCoy responds to the proposed rule on the definition of a General Qualified Mortgage from the Consumer Financial Protection Bureau.


The Challenge Of Deterring Bad Police Behavior: Implementing Reforms That Hold Police Accountable, Robert M. Bloom, Nina Labovich Sep 2020

The Challenge Of Deterring Bad Police Behavior: Implementing Reforms That Hold Police Accountable, Robert M. Bloom, Nina Labovich

Boston College Law School Faculty Papers

Systemic racism in the United States is pervasive. It runs through every aspect of society, from healthcare to education. Changing all of the parts of society touched by racism is necessary, however, this Article does not provide a cure for systemic racism. It seeks to address a byproduct of this racism: police brutality. Over and over, headlines broadcast the deaths of Black Americans at the hands of the police – why has nothing changed? This Article argues that meaningful reform requires trust in U.S. law enforcement, which can only be achieved by holding police accountable and deterring misconduct. To do ...


Rethinking Copyright's Relationship To The First Amendment, Alfred C. Yen Sep 2020

Rethinking Copyright's Relationship To The First Amendment, Alfred C. Yen

Boston College Law School Faculty Papers

This Article offers a new account of copyright’s relationship to the First Amendment. Until now, discourse about copyright and the First Amendment appears focused on applying a single standard of review. The Supreme Court has effectively taken the position that courts need only apply rational basis First Amendment scrutiny to copyright law. Some scholars have disagreed, arguing that intermediate scrutiny should be applied to all of copyright. By contrast, this Article argues that the proper level of First Amendment scrutiny depends on the type of copyright provision under review. In particular, courts should apply strict scrutiny to the few ...


Interagency Merger Review In Labor Markets, Hiba M. Hafiz Sep 2020

Interagency Merger Review In Labor Markets, Hiba M. Hafiz

Boston College Law School Faculty Papers

As empirical evidence of labor market concentration mounts, academics and policymakers advanced proposals to challenge or reverse its effects on workers’ wages and labor market options. Prominent among these is more aggressive review of the labor market effects of mergers by the Department of Justice (DOJ) and the Federal Trade Commission (FTC). This Essay argues for an alternative intervention: because placing exclusive jurisdiction over the labor market effects of mergers in the DOJ and FTC will be fundamentally limited for historical, doctrinal, institutional, and expertise-based reasons and as a matter of prophylactic policy, the National Labor Relations Board (“NLRB”) should ...


Livening Up 1l Year: Moving Beyond Simulations To Engage 1l Students In Live-Client Work, Cheryl Bratt Sep 2020

Livening Up 1l Year: Moving Beyond Simulations To Engage 1l Students In Live-Client Work, Cheryl Bratt

Boston College Law School Faculty Papers

No abstract provided.


Constitutionalizing Financial Stability, Patricia A. Mccoy Aug 2020

Constitutionalizing Financial Stability, Patricia A. Mccoy

Boston College Law School Faculty Papers

In the last Supreme Court term, the Court ruled in Seila Law LLC v. Consumer Financial Protection Bureau that Article II of the U.S. Constitution and separation of powers prohibit Congress from shielding the Bureau’s director from termination except for cause. Seila Law has natural implications for the CFPB’s independence (although the magnitude of that effect is unclear). More troubling, Seila Law could open up the financial system to destabilization by paving the path for a full-scale assault on the traditional independence of federal financial regulators and presidential manipulation of the economy.

Seila Law erodes independent agency ...


Review Of When Misfortune Becomes Injustice: Evolving Human Rights Struggles For Health And Social Equality By Alicia Ely Yamin, Katharine G. Young Aug 2020

Review Of When Misfortune Becomes Injustice: Evolving Human Rights Struggles For Health And Social Equality By Alicia Ely Yamin, Katharine G. Young

Boston College Law School Faculty Papers

Review of When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford University Press, 2020) by Alicia Ely Yamin and , Beyond Repair?: Mayan Women’s Protagonism in the Aftermath of Genocidal Harm (New Brunswick: Rutgers University Press, 2019) by Alison Crosby and M. Brinton Lykes.


Against Bidimensional Supremacy In Eu Constitutionalism, Vlad F. Perju Jul 2020

Against Bidimensional Supremacy In Eu Constitutionalism, Vlad F. Perju

Boston College Law School Faculty Papers

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction ...


Revisiting The Western Frontier, Alfred C. Yen Jun 2020

Revisiting The Western Frontier, Alfred C. Yen

Boston College Law School Faculty Papers

I appreciate very much the opportunity to look back on “old” scholarship. The work I have chosen to review is Western Frontier or Feudal Society? Metaphors and Perceptions of Cyberspace. I published this article in 2002 as a reaction to the then popular idea that the Internet was a libertarian utopia whose natural qualities made government regulation unnecessary or perhaps even harmful.

Hindsight is indeed 20/20, and there are things one could have done differently. Whether it would have been reasonably possible for me to do these things is an open question. Accordingly, I will divide my retrospective into ...


Choosing The Consequences Of Tam And Brunetti, Alfred C. Yen Jun 2020

Choosing The Consequences Of Tam And Brunetti, Alfred C. Yen

Boston College Law School Faculty Papers

In Matal v. Tam and Iancu v. Brunetti, the Supreme Court did something it has never done before – namely apply strict First Amendment scrutiny to trademark law. This is a big deal. Many have argued, to relatively little effect, that intellectual property laws, like trademarks, raise serious free speech problems. It is therefore significant news for the Court to declare portions of the Lanham Act unconstitutional not once, but twice.

Like all Supreme Court decisions that break new ground, Tam and Brunetti raise questions about what comes next. In this Essay, I consider some of those possibilities and conclude that ...


The Boston Lawyers’ Committee For Civil Rights Under Law: The First Fifty Years, Mark S. Brodin Jun 2020

The Boston Lawyers’ Committee For Civil Rights Under Law: The First Fifty Years, Mark S. Brodin

Boston College Law School Faculty Papers

Massachusetts lawyers have a long tradition of pro bono public service and commitment to the greater good of our society. So, it is no surprise that John F. Kennedy, a president steeped in Massachusetts history, reached out to the practicing bar to involve it in what he saw as a moral and legal crisis “as old as the scriptures and as clear as the American constitution.” In 1963, only months before his assassination, President Kennedy convened a meeting of 244 of the nation’s leading lawyers at the White House, seeking their active participation in the protection of civil rights ...


Leveraging Open Educational Resources & Affordable Course Materials In Legal Education, Mary Ann Neary, Lisa Davis May 2020

Leveraging Open Educational Resources & Affordable Course Materials In Legal Education, Mary Ann Neary, Lisa Davis

Boston College Law School Faculty Papers

In an opinion piece for the New York Times, Columbia Law School Professor Tim Wu lamented “the outlandish prices of the books we assign.” He questioned whether the rising costs of college textbooks is worth the cost to students. (Read the article at bit.ly/MJ20NYTwu.) Professor Wu noted that there are high-quality options for assigning reading—options without the cost (over $200) of the typical law school casebook with supplement. OpenStax, a major force in open educational undergraduate college textbooks, estimates that in 2019, 3 million students were using its texts, for a savings of $233 million. (Read more ...


White Male Aristocracy, Mary Sarah Bilder Apr 2020

White Male Aristocracy, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written for the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Gerry Leonard and Saul Cornell’s fascinating book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s tells the story, as I put in in a blurb, “of the unsettling transformation of aristocratic-tinged constitutional republic into a partisan white male democracy.” In this year where we recall the Nineteenth Amendment’s re-enfranchisement of women, the Leonard/Cornell book demands that we reevaluate the way we describe the early nineteenth-century ...


Are Two Employers Better Than One? An Empirical Assessment Of Multiple-Employer Retirement Plans, Natalya Shnitser Apr 2020

Are Two Employers Better Than One? An Empirical Assessment Of Multiple-Employer Retirement Plans, Natalya Shnitser

Boston College Law School Faculty Papers

At least 50% of Americans have not saved enough for retirement. This is in part due to a lack of access to employer-sponsored retirement plans. Nearly a third of the U.S. workforce is employed by businesses that choose not to sponsor workplace retirement plans for their employees. Moreover, plans set up by smaller employers tend to be plagued by high fees that eat away at retirement savings. To increase worker participation in low-cost retirement plans, lawmakers across the political spectrum have coalesced around reforms to allow more small employers to pool their assets and to centralize plan administration through ...


The New Fiduciaries, Natalya Shnitser Apr 2020

The New Fiduciaries, Natalya Shnitser

Boston College Law School Faculty Papers

The regulation of employer-sponsored retirement plans in the United States relies on fiduciary standards drawn from donative trust law to regulate the conduct of those with authority or discretion over plan assets. The mismatch between the trust-based fiduciary framework and the rights and interests of employers and employees has contributed to the high cost of pension fund investing and the significant gaps in pension coverage in the private sector. In recent years, state and local governments have stepped in to reduce the retirement coverage gap by creating state-facilitated retirement savings programs for private-sector workers who lack access to employment-based coverage ...


Ownership Work And Work Ownership, Hiba Hafiz Mar 2020

Ownership Work And Work Ownership, Hiba Hafiz

Boston College Law School Faculty Papers

Professor Lee Fennell’s groundbreaking Slices and Lumps incisively reconceptualizes how the gig—or “slicing”—economy impacts the structuring of work. But it goes even further to alert us to how “delumping the working experience” can transform the infrastructure of work, from an individual’s task design to the agglomeration costs and benefits of untying and retying workers to desks, work to benefits, worksites to surrounding communities.

This Essay takes seriously her invitation to refine and adapt its insights to radically readjust work law in two ways. First, it explores how employer’s property rights over worksites are “lumpy” when ...


Regulating In Pandemic: Evaluating Economic And Financial Policy Responses To The Coronavirus Crisis, Hiba Hafiz, Shu-Yi Oei, Diane M. Ring, Natalya Shnitser Mar 2020

Regulating In Pandemic: Evaluating Economic And Financial Policy Responses To The Coronavirus Crisis, Hiba Hafiz, Shu-Yi Oei, Diane M. Ring, Natalya Shnitser

Boston College Law School Faculty Papers

The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the ...


Labor's Antitrust Paradox, Hiba Hafiz Mar 2020

Labor's Antitrust Paradox, Hiba Hafiz

Boston College Law School Faculty Papers

Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that ...


Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield Mar 2020

Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield

Boston College Law School Faculty Papers

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination.

In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty ...


Tax Law's Workplace Shift, Shu-Yi Oei, Diane M. Ring Mar 2020

Tax Law's Workplace Shift, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace ...


Why The Ability-To-Repay Rule Is Vital To Financial Stability, Patricia A. Mccoy, Susan M. Wachter Mar 2020

Why The Ability-To-Repay Rule Is Vital To Financial Stability, Patricia A. Mccoy, Susan M. Wachter

Boston College Law School Faculty Papers

Following the 2008 financial crisis, Congress required residential mortgage lenders to make a reasonable determination of borrowers’ ability to repay before extending credit. Most regard this ability-to-repay rule as a consumer-protection provision. Less well-appreciated is the rule’s importance in protecting financial stability.

We respond to a landmark 2015 critique in the University of Pennsylvania Law Review, which argued that the rule will fail to limit bubbles because mortgage lenders will underestimate their liability exposure when home prices are rapidly appreciating and ignore the rule as a consequence. On the contrary, we argue that the ability-to-repay rule acts as a ...


The Macroprudential Implications Of The Qualified Mortgage Debate, Susan M. Wachter, Patricia A. Mccoy Mar 2020

The Macroprudential Implications Of The Qualified Mortgage Debate, Susan M. Wachter, Patricia A. Mccoy

Boston College Law School Faculty Papers

In January 2021, the Consumer Financial Protection Bureau (CFPB or Bureau) will face a decision: renew its special definition for Qualified Mortgages (QMs) made by Fannie Mae and Freddie Mac, abolish that definition, or adopt some other approach to QMs. This seemingly arcane issue, which concerns the so-called Government-Sponsored Enterprise (GSE) Patch,is the subject of fierce debate and a recent Advance Notice of Proposed Rulemaking (ANPR) by the CFPB.

While ostensibly inconsequential to those unfamiliar with the topic, this decision may open the floodgates again to a private-label mortgage system without the necessary regulatory controls to prevent ruinous competition ...


The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper Feb 2020

The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper

Boston College Law School Faculty Papers

Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This Article examines the lack of truly independent immigration judges (IJs) through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient ...


The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder Jan 2020

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Boston College Law School Faculty Papers

In written celebration of Kent Newmyer’s intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging ...


Developing Fiduciary Culture In Vietnam, Brian Jm Quinn Jan 2020

Developing Fiduciary Culture In Vietnam, Brian Jm Quinn

Boston College Law School Faculty Papers

This Article examines Vietnam’s efforts during the past two and a half decades to build up its legal infrastructure during its transition from a centrally planned to a market economy. In particular, this Article will focus on the development of legal and regulatory infrastructure to support the development of the corporate sector and fiduciary culture in Vietnam. Following the collapse of the Soviet Bloc and Soviet-styled central planning beginning in the late 1980s, transition countries like Vietnam faced immediate and critical challenges to transition to new market oriented models of organization. Currently, this transition from central planning to markets ...


Identity Federalism In Europe And The United States, Vlad F. Perju Jan 2020

Identity Federalism In Europe And The United States, Vlad F. Perju

Boston College Law School Faculty Papers

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives too have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional ...


Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong Jan 2020

Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong

Boston College Law School Faculty Papers

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and ...


The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young Jan 2020

The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young

Boston College Law School Faculty Papers

The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This Article argues that the human rights to life, health, education, social security, housing, food, water and sanitation – the so-called economic and social rights – are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect ...


"Turn It, Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah: The Rabbinic Idea Of Law, Cathleen Kaveny Jan 2020

"Turn It, Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah: The Rabbinic Idea Of Law, Cathleen Kaveny

Boston College Law School Faculty Papers

After reading Professor Chaim Saiman’s book, Halakhah: The Rabbinic Idea of Law, I have a desire to learn more about halakhah. I have a sense of the questions I want to ask, and the issues I want to pursue, given my own commitments and training, which are both similar to and yet very different from his. Like Professor Saiman, I am a secular lawyer. I am also a Christian theological ethicist. As I worked through the book, I came to see that halakhah has significant overlap not only with canon law, which aims to regulate behavior in the community ...


Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser Dec 2019

Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser

Boston College Law School Faculty Papers

The Supreme Court heard oral argument on Wednesday in Intel Corp. Investment Policy Committee v. Sulyma, a case that puts a spotlight on the disclosures that retirement plans provide to plan participants. Under the Employee Retirement Income Security Act of 1974 (ERISA), participants in employer-sponsored retirement plans have the right to challenge the prudence of decisions that plan fiduciaries make about the investment options available through the plan. ERISA sets time limits for bringing such suits. Section 413(1) of ERISA gives plaintiffs six years after the end of the fiduciary breach, violation or omission. Section 413(2) imposes a ...