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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 ...


Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young Nov 2019

Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young

Boston College Law School Faculty Papers

In 2014, five-year old South African Michael Komape fell through a broken toilet—a rudimentary pit outfitted by his school—and drowned. His case was taken up by “SECTION27”, a social justice organization in South Africa, which campaigns for constitutional rights to dignity, equality, education, health care, social assistance, food and water (the latter rights are entrenched in the Constitution’s section 27). Pursuing both a #JusticeForMichael political campaign and litigation, SECTION27 won its argument about government liability, but failed in securing a remedy for Michael’s traumatized family.

The Komape case is emblematic of the complex interaction that can ...


Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan Sep 2019

Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan

Boston College Law School Faculty Papers

This Article argues that the Court’s recent decisions have effectively revived Pennoyer’s focus on physical presence and status, at the expense of the fairness and contact considerations set forth in International Shoe, as the bases for asserting personal jurisdiction. Part II details the jurisdictional analysis under both Pennoyer and International Shoe. Part III discusses the evolution of personal jurisdiction doctrine under International Shoe. Part IV demonstrates that the Court’s recent decisions have revitalized Pennoyer’s territorially based regime, and consequently diminished the thrust of International Shoe.


Social Justice Implications For "Retail" Ced, Paul R. Tremblay Apr 2019

Social Justice Implications For "Retail" Ced, Paul R. Tremblay

Boston College Law School Faculty Papers

This short essay represents an extended abstract of some ideas prepared for a moderated discussion group entitled “CED Is Access to Justice” at the AALS Annual Meeting in San Diego in January, 2018. The Journal of Affordable Housing and Community Development Law has now published the collected abstracts from the discussants, including this piece. The aim of this essay is to identify the social justice implications and community-building qualities of what it calls “retail” community economic development (CED)—that is, transactional work on behalf of individual entrepreneurs seeking to establish successful new businesses, typically in underserved localities. Critics persuasively note ...


Comment Of Legal Scholars On Occ's Community Reinvestment Act Anpr (Docket Id Occ-2018-0008), Vincent Rougeau, Patricia A. Mccoy Nov 2018

Comment Of Legal Scholars On Occ's Community Reinvestment Act Anpr (Docket Id Occ-2018-0008), Vincent Rougeau, Patricia A. Mccoy

Boston College Law School Faculty Papers

Comment submitted to the federal government on a proposal to revise the rule implementing the Community Reinvestment Act.


The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin Oct 2018

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Boston College Law School Faculty Papers

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout ...


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 ...


A Feminist Framing Of Non-Consensual Pornography, Claire P. Donohue Feb 2018

A Feminist Framing Of Non-Consensual Pornography, Claire P. Donohue

Boston College Law School Faculty Papers

No abstract provided.


The Trouble With Gig Talk: Choice Of Narrative And The Worker Classification Fights, Shu-Yi Oei Jan 2018

The Trouble With Gig Talk: Choice Of Narrative And The Worker Classification Fights, Shu-Yi Oei

Boston College Law School Faculty Papers

The term “sharing economy” is flawed, but are the alternatives any better? This Essay evaluates the uses of competing narratives to describe the business model employed by firms like Uber, Lyft, TaskRabbit, and GrubHub. It argues that while the term “sharing economy” may be a misnomer, terms such as “gig economy,” “1099 economy,” “peer-to-peer economy” or “platform economy” are just as problematic, possibly even more so. These latter terms are more effective in exploiting existing legal rules and ambiguities to generate desired regulatory outcomes, in particular, the classification of workers as independent contractors. This is because they are plausible, speak ...


Institutional Conditions Of Contemporary Legal Thought, Paulo D. Barrozo Dec 2017

Institutional Conditions Of Contemporary Legal Thought, Paulo D. Barrozo

Boston College Law School Faculty Papers

No abstract provided.


Microaggressions: What They Are And Why They Matter, Catharine P. Wells Sep 2017

Microaggressions: What They Are And Why They Matter, Catharine P. Wells

Boston College Law School Faculty Papers

Review of some of the recent work on microaggressions and explanation of their significance in the exclusion of minorities from participation in dominantly white communities.


The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii Jun 2017

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii

Boston College Law School Faculty Papers

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...


The Puzzle Of Deflategate: Private Agreements And The Possibility Of Biased Justice, Alfred C. Yen Apr 2017

The Puzzle Of Deflategate: Private Agreements And The Possibility Of Biased Justice, Alfred C. Yen

Boston College Law School Faculty Papers

In this Article, I study the implications of National Football League Management Council v. National Football League Players Association, the recent decision in which the United States Court of Appeals for the Second Circuit dealt New England Patriots star quarterback Tom Brady a stinging defeat in his so-called "Deflategate" case against the National Football League ("NFL"). I do so because, although most of the court's opinion follows well-established doctrine, a crucial portion of decision quickly glosses over important unanswered questions about federal arbitration law and the enforceability of pre-dispute arbitration agreements that contemplate the appointment of an evidently partial ...


Rape By Malice, Kari E. Hong Jan 2017

Rape By Malice, Kari E. Hong

Boston College Law School Faculty Papers

When people seek to reform rape law, the focus is on changing the actus reus—either abandoning the force element or redefining consent. This article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this article proposes that states adopt the mens rea of malice—a callous indifference ...


Adjudicating Social And Economic Rights: Can Democratic Experimentalism Help?, Katharine G. Young Jan 2015

Adjudicating Social And Economic Rights: Can Democratic Experimentalism Help?, Katharine G. Young

Boston College Law School Faculty Papers

Social and economic rights (SER) adjudication is an ever more common feature of rights-protecting democracies. Yet democratic concerns continue to be expressed: the threat of a judicialized politics, a politicized judiciary, co-opted claimants, distorted markets, and other (real and imagined) challenges. These concerns are raised within jurisdictions that have not yet entrenched SER and those in which SER are explicitly justiciable. Scholars seeking to address, or at least quiet, such concerns often explore the real-world examples of SER justiciability in South Africa, India, Colombia, Brazil, Argentina and other jurisdictions discussed in this book. Another approach is to examine new ways ...


Between Cosmopolis And Community: Globalization And The Emerging Basis For Global Justice, Frank J. Garcia May 2013

Between Cosmopolis And Community: Globalization And The Emerging Basis For Global Justice, Frank J. Garcia

Boston College Law School Faculty Papers

Globalization is fundamentally transforming economic and social relations but its impact has yet to be fully realized in jurisprudence and political theory. In this article I argue that globalization is creating new normative possibilities by developing the social basis for a truly “global” justice, thereby transcending the objections most commonly raised by contractarian and communitarian critics. As globalization reduces or eliminates the role of time and space in many kinds of interactions, we see emerging a new global community, consisting of shared understandings, practices, and traditions capable of supporting obligations of justice at a global level. Members of this global ...


A World Of Choices, David A. Wirth Jan 2013

A World Of Choices, David A. Wirth

Boston College Law School Faculty Papers

In this keynote address, David Wirth identifies fundamental and dynamic attributes of globalisation, examines the need to confront institutional failures and systemic challenges of multilateral governance, and offers some preliminary observations on directions in which global governance might evolve to achieve salutary outcomes that are good for all.


Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin Jul 2012

Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin

Boston College Law School Faculty Papers

In the stiff competition for worst Supreme Court decision ever, two candidates stand heads above the others for the simple reason that they precipitated actual fighting wars in their times. By holding that slaves, as mere chattels, could not sue in court and could never be American citizens, and further invalidating the Missouri Compromise, which had prohibited slavery in new territories, Dred Scott v. Sanford charted the course to secession and Civil War four years later. By disenfranchising Florida voters and thereby appointing popular-vote loser George W. Bush as President, Bush v. Gore set in motion events which would lead ...


Social Media, Public School Teachers, And The First Amendment, Mary-Rose Papandrea May 2012

Social Media, Public School Teachers, And The First Amendment, Mary-Rose Papandrea

Boston College Law School Faculty Papers

Education officials around the country are grappling with issues surrounding public school teachers’ use of social media. Typically concerned that social media makes it easier for teachers to engage in inappropriate communications with their students, officials have adopted guidelines that prohibit K-12 teachers from using social media to communicate with their students for noncurricular purposes. In addition, teachers are frequently punished for content they or others post on social media even when their students and the school community were not the intended audience. Current doctrine leaves unclear how much authority schools have to restrict their teachers’ use of social media ...


Challenges Of “Sameness”: Pitfalls And Benefits To Assumed Connections In Lawyering, Alexis Anderson, Lynn Barenberg, Carwina Weng Apr 2012

Challenges Of “Sameness”: Pitfalls And Benefits To Assumed Connections In Lawyering, Alexis Anderson, Lynn Barenberg, Carwina Weng

Boston College Law School Faculty Papers

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process.

Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted ...


Hauerwas And The Law: Is There A Basis For Conversation?, M. Cathleen Kaveny Jan 2012

Hauerwas And The Law: Is There A Basis For Conversation?, M. Cathleen Kaveny

Boston College Law School Faculty Papers

No abstract provided.


Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, And Death Penalty Discourse, Kurt M. Denk Jan 2012

Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, And Death Penalty Discourse, Kurt M. Denk

Boston College Law School Faculty Papers

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment." This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated ...


Constitutional Transplants, Borrowing, And Migrations, Vlad F. Perju Jan 2012

Constitutional Transplants, Borrowing, And Migrations, Vlad F. Perju

Boston College Law School Faculty Papers

This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of ...


What One Lawyer Can Do For Society: Lessons From The Remarkable Career Of William P. Homans, Jr., Mark S. Brodin Dec 2011

What One Lawyer Can Do For Society: Lessons From The Remarkable Career Of William P. Homans, Jr., Mark S. Brodin

Boston College Law School Faculty Papers

William P. Homans Jr. was an iconic civil liberties and criminal defense lawyer who mentored generations of younger lawyers that followed in his path. He appeared in cases that defined his times, from representing targets of the McCarthy-era inquisitions of the 1950s, to defending publishers of books like Tropic of Cancer when the authorities sought to suppress them, to serving on the defense team in the conspiracy trial of internationally-renowned pediatrician Benjamin Spock and four other leaders of the anti-Vietnam-War movement, to defending a doctor charged with manslaughter arising from an abortion he performed soon after Roe v. Wade legalized ...


The Politics Of Federalism: Self-Interest Or Safeguards? Evidence From Congressional Control Of State Taxation, Brian D. Galle Aug 2011

The Politics Of Federalism: Self-Interest Or Safeguards? Evidence From Congressional Control Of State Taxation, Brian D. Galle

Boston College Law School Faculty Papers

We present for the first time in the literature a quantitative analysis of the efficacy of the "political safeguards of federalism." We also test the popular theory that congressional control of state authority to tax maximizes national welfare. Both analyses rely on a hand-collected data set of every federal statute to date affecting state power to tax.

Overall, our data suggest that federal decisions to curtail state autonomy are strongly influenced by congressional self-interest. Conditional on enactment, statutes affecting state taxing power are more likely to reduce state authority when a concentrated special interest group stands to benefit, and also ...


Tethering The Administrative State: The Case Against Chevron Deference For Fcc Jurisdictional Claims, Daniel A. Lyons Jul 2011

Tethering The Administrative State: The Case Against Chevron Deference For Fcc Jurisdictional Claims, Daniel A. Lyons

Boston College Law School Faculty Papers

Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer.

This article argues that Chevron deference should not ...


"Passed Beyond Our Aid:" U.S. Deportation, Integrity, And The Rule Of Law, Daniel Kanstroom Jul 2011

"Passed Beyond Our Aid:" U.S. Deportation, Integrity, And The Rule Of Law, Daniel Kanstroom

Boston College Law School Faculty Papers

The United States is still in the midst of a massive deportation experiment that is exceptionally sweeping and harsh by virtually any historical or comparative measure. In the last twenty-five years, the number of non-citizen deportations has exceeded 25 million. It is therefore important to think critically about how deportation is really working, especially as to many hundreds of thousands of green-card holders. These individuals have grown up, been fully acculturated, attended school, and raised families in the United States. Upon deportation, they are separated from their families and sent to places where they frequently have few acquaintances, do not ...


‘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 ...


The Exxon Valdez Resurfaces In The Gulf Of Mexico ... And The Hazards Of “Megasystem Centripetal Di-Polarity”, Zygmunt J.B. Plater Jun 2011

The Exxon Valdez Resurfaces In The Gulf Of Mexico ... And The Hazards Of “Megasystem Centripetal Di-Polarity”, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The 2010 BP Deepwater Horizon blowout spill in the Gulf of Mexico shocked the nation with the amount of oil and harm it unleashed upon the Gulf and its natural and human ecosystems. As details of the calamity became available, they revealed frustrating parallels to the 1989 Exxon Valdez oil spill in the Gulf of Alaska in terms of causation and impaired response capability. Similar systemic deficits characterized the actions of corporate managers and state and federal regulators in the oil industry of both Gulfs. In a “di-polar” system where industry and government regulators are supposed to counterbalance one another ...


Tethering The Fcc: The Case Against Chevron Deference For Jurisdictional Claims, Daniel A. Lyons Jun 2011

Tethering The Fcc: The Case Against Chevron Deference For Jurisdictional Claims, Daniel A. Lyons

Boston College Law School Faculty Papers

Despite the Administration's recent rhetoric about regulatory review, regulation and re-regulation seems destined to be a primary theme of President Obama‟s first term. From the financial markets and consumer lending to the health care industry, the President and Congress have enacted statutes designed to curb what they saw as prior Administrations' deregulatory excesses. The Federal Communications Commission has been an eager participant in this regulatory and re-regulatory wave: since 2009, under Chairman Genachowski's leadership, the agency has adopted several new initiatives, ranging from a proposal to regulate set-top box video navigation devices to various measures to regulate ...