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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 ...


Moving Beyond Cameras In The Courtroom: The Supreme Court, Technology, And The Media, Mary-Rose Papandrea Feb 2013

Moving Beyond Cameras In The Courtroom: The Supreme Court, Technology, And The Media, Mary-Rose Papandrea

Boston College Law School Faculty Papers

From the introduction:

News media, legal blogs, and law reviews routinely cite a panoply of reasons why the Supreme Court will not permit the televising or videotaping of oral arguments: the Justices’ desire for anonymity , the risk that creative editing of sound bites will mislead the public , the risk that the Justices’ question s and comments will be taken out of context , the need to separate the judicial process from the political branches of government, a lack of confidence in the public’s ability to understand the proceedings, and the concern that both the lawyers and the Justices will grandstand ...


Balancing And The Unauthorized Disclosure Of National Security Information: A Response To Mark Fenster's Disclosure Effects: Wikileaks And Transparency, Mary-Rose Papandrea Oct 2012

Balancing And The Unauthorized Disclosure Of National Security Information: A Response To Mark Fenster's Disclosure Effects: Wikileaks And Transparency, Mary-Rose Papandrea

Boston College Law School Faculty Papers

In his recent article, Disclosure’s Effects: WikiLeaks and Transparency, Mark Fenster argues that WikiLeaks demonstrates the “impossibility” of balancing the public benefits of national-security-information disclosure with the effects of the disclosure on the nation’s national security and foreign policy interests. This article is a continuation of Professor Fenster’s previous work examining the costs and benefits of transparency. In his prior work, he fleshes out the criticisms of the current transparency regime that appear somewhat fleetingly here: namely, that we should question the assumption that transparency promotes an informed and engaged electorate as well as better, more responsive ...


‘That Man Is You!’ The Juristic Person And Faithful Love, Scott T. Fitzgibbon Jun 2011

‘That Man Is You!’ The Juristic Person And Faithful Love, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

“The science of law,” it has been said, “must be drawn from man’s inmost nature.” The science of obligation – the dimension of jurisprudence that concerns duties – must be founded upon the experiences of humanity. It should draw upon insight into human flourishing, and it should base its conclusion upon the basic goods involved in human life. Similar recommendations might be suggested for the “science,” if it is one, of love. This paper aims to pursue those projects.

The story of David, Bathsheba, and Nathan sheds much light on man’s inmost nature, and on obligation, love, and law. Nathan ...


Border Searches In The Age Of Terrorism, Robert M. Bloom Feb 2009

Border Searches In The Age Of Terrorism, Robert M. Bloom

Boston College Law School Faculty Papers

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns ...


Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown Oct 2007

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

Boston College Law School Faculty Papers

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal ...


Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J. Jun 2007

Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to ...


Why We Have Judicial Review, Mary Sarah Bilder Apr 2007

Why We Have Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This paper accompanies Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006), in which the author argues that the origins of judicial review lie not in the expansion of judicial power but rather in the prior practice of commitment to limited legislative authority.


The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom Feb 2007

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Boston College Law School Faculty Papers

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jun 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be ...


The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown May 2006

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

Boston College Law School Faculty Papers

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and ...


Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett Jan 2005

Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett

Boston College Law School Faculty Papers

The Catholic Church’s opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church’s teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be ...


Judicial Attitudes Toward Confronting Attorney Misconduct: A View From The Reported Decisions, Judith A. Mcmorrow, Jackie Gardina, Salvatore Ricciardone Jan 2004

Judicial Attitudes Toward Confronting Attorney Misconduct: A View From The Reported Decisions, Judith A. Mcmorrow, Jackie Gardina, Salvatore Ricciardone

Boston College Law School Faculty Papers

Over the last 20 years, a rich body of literature has emerged to describe the increasingly complex system of lawyer regulation in the United States. This article studies the available data from the Code of Judicial Conduct and federal and state court opinions to glean a richer understanding of how judges construct their individual and institutional role in this web of attorney regulation. The picture that emerges from the reported decisions in both state and federal court is a desire to maintain the integrity of the judicial process and a concern for the efficiency and fairness in the proceeding before ...


Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron Jul 2003

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron

Boston College Law School Faculty Papers

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the ...


Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy Jan 2000

Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy

Boston College Law School Faculty Papers

This Article analyzes the Supreme Court’s decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor’s disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.


Copyright Opinions And Aesthetic Theory, Alfred C. Yen Jan 1998

Copyright Opinions And Aesthetic Theory, Alfred C. Yen

Boston College Law School Faculty Papers

In this Article the author contends that judges should be conscious of aesthetics when deciding copyright cases. However, given the inherent ambiguity of aesthetics and the supposedly objective rules and principles that govern judicial opinions, courts implicitly assume a sharp divide between aesthetic reasoning and legal reasoning. Additionally, because aesthetic choices by judges could potentially be deemed government censorship, the two are further considered incompatible. The author argues, however, that this distinction is illusory in that a truly open-minded copyright jurisprudence requires explicit awareness of aesthetics. This argument is supported firstly by a description of four major movements from aesthetic ...


The Origin Of The Appeal In America, Mary Sarah Bilder Jul 1997

The Origin Of The Appeal In America, Mary Sarah Bilder

Boston College Law School Faculty Papers

The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture. Professor Bilder's Article draws on recent work in cultural history ...


Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown Jan 1997

Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown

Boston College Law School Faculty Papers

In this Article, Professor Brown examines the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions under the mail fraud statute and considers the general debate over the proper scope of federal criminal law. Professor Brodin addresses the question of whether a re-examination of mail fraud would focus on constitutional or statutory issues and by utilizing the Supreme Court case United States v. Lopez examines the question of internal limits on the mail fraud statute.


Old Fashioned Postmodernism And The Legal Theories Of Oliver Wendell Holmes, Catharine P. Wells Jan 1997

Old Fashioned Postmodernism And The Legal Theories Of Oliver Wendell Holmes, Catharine P. Wells

Boston College Law School Faculty Papers

From the introduction:

Whether Holmes was the greatest American jurist is a question for debate. What needs no debate is the fact that Holmes is the most published, the most discussed, the most praised and the most criticized judge in American history. In view of this fact, one might well doubt the need for yet another paper on Holmes. The sheer number of studies, discussions, collections and biographies raises question as to whether we have not already said enough. Is there any point-besides the obvious pleasure of a good symposium-to more discussion of Holmes and his effect on American law ...


Holmes On Legal Method: The Predictive Theory Of Law As An Instance Of Scientific Method, Catharine P. Wells Jan 1994

Holmes On Legal Method: The Predictive Theory Of Law As An Instance Of Scientific Method, Catharine P. Wells

Boston College Law School Faculty Papers

From the introduction:

When it comes to legal method, Holmes is well known for two claims: first, that lawyers and legal scholars should employ an empirical rather than a deductive method and second, that the task of lawyers is to predict the actions of judges. These claims raise a number of questions. Three questions, in particular, seem to recur among thoughtful readers: (1) Why does Holmes, leader of the revolt against formalism, place so much emphasis on the role of logical analysis in law? (2) If legal method is empirical, what is law "empirical" about? What are the facts or ...


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Jan 1993

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Boston College Law School Faculty Papers

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron Mar 1992

The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron

Boston College Law School Faculty Papers

In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state ...


Clarence Thomas: The Invisible Man, Catharine P. Wells Jan 1992

Clarence Thomas: The Invisible Man, Catharine P. Wells

Boston College Law School Faculty Papers

From the introduction:

Rarely do people stay glued to their televisions in order to watch events they do not enjoy. But such was unquestionably the case with the Senate hearings on Clarence Thomas' nomination to the Supreme Court. There was widespread agreement on only one thing: Something had gone terribly wrong with the process. Right or left, feminist or not, pro-life or pro-choice, however one stood on the question of confirmation, the hearings defied simple analysis. Racism and sexism provided a troubling backdrop as the hearings reminded us how little we understand one another. Neither Thomas nor Hill were easily ...


Improving One's Situation: Some Pragmatic Reflections On The Art Of Judging, Catharine P. Wells Jan 1992

Improving One's Situation: Some Pragmatic Reflections On The Art Of Judging, Catharine P. Wells

Boston College Law School Faculty Papers

From the introduction:

As legal theorists, we live in an age of self-conscious repetition: everything is "neo" and nothing is new. There are neo-realists, neo-formalists, neo-conservatives, and neo-pragmatists to name just a few. And what is not "neo" is "post" as in post-structuralist, post-colonial, and even postcritical. Indeed, the newest theories sound pointedly antitheoretical as deconstructionists, feminists, and critical legal scholars argue in various ways that conventional theory making is but one more mechanism for oppressing the powerless. In all this theory consciousness, it is difficult to have simple thoughts and it is especially difficult to think simply about judging ...


Situated Decisionmaking, Catharine P. Wells Jan 1990

Situated Decisionmaking, Catharine P. Wells

Boston College Law School Faculty Papers

The purpose of this Article is to examine the concerns that surround situated judging and the central questions to which they give rise: How can a situated judge render a just decision? On its face, the question appears to be both decisive and unanswerable. Upon deeper examination, however, we can see that the question relies upon a doubtful set of presuppositions about situated decision-making. In the course of this Article, the author seeks to defend the pragmatic analysis of legal decision-making by casting doubt upon these assumptions. Part II develops two contrasting models of normative decision-making that represent the purported ...


Accuracy, Efficiency, And Accountability In The Litigation Process – The Case For The Fact Verdict, Mark S. Brodin Jan 1990

Accuracy, Efficiency, And Accountability In The Litigation Process – The Case For The Fact Verdict, Mark S. Brodin

Boston College Law School Faculty Papers

Although the jury trial is regarded as a lynchpin of the American concept of justice, ambivalence about the institution persists, particularly in the context of civil litigation. Some question whether the civil jury is an inefficient anachronism. This article argues that many of the concerns raised about civil juries in general are really concerns about the routine use of the general verdict, an institution that merges the jury’s fact finding function and its role as an applier of law. The article argues that in many instances, replacing a general verdict with a special verdict would allow the jury to ...


Legal Innovation Within The Wider Intellectual Tradition: The Pragmatism Of Oliver Wendell Holmes, Jr., Catharine P. Wells Jan 1988

Legal Innovation Within The Wider Intellectual Tradition: The Pragmatism Of Oliver Wendell Holmes, Jr., Catharine P. Wells

Boston College Law School Faculty Papers

From the introduction:

Oliver Wendell Holmes, Jr. is one of the dominant figures in American jurisprudence. As a scholar, he wrote prolifically about legal theory and legal history. His book The Common Law is one of the most influential studies of the common law tradition; it has shaped the views of American legal scholars for several generations. In addition, Holmes spent nearly forty years as a judge-first as a justice on the Massachusetts Supreme Judicial Court and later as an Associate Justice of the United States Supreme Court. On the bench, Holmes was a formidable presence influencing the development of ...


Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles H. Baron Jan 1978

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles H. Baron

Boston College Law School Faculty Papers

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court ...