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Full-Text Articles in Law

Beyond The Ada: How Clinics Can Assist Law Students With “Non-Visible” Disabilities To Bridge The Accommodations Gap Between Classroom And Practice, Alexis Anderson, Norah Wylie Apr 2008

Beyond The Ada: How Clinics Can Assist Law Students With “Non-Visible” Disabilities To Bridge The Accommodations Gap Between Classroom And Practice, Alexis Anderson, Norah Wylie

Boston College Law School Faculty Papers

This article examines how best to educate law students with disabilities so that they can successfully transition from classroom to practice. At the very time that the importance of experiential learning is being trumpeted as critical to the preparation of all law students for practice, all too little attention has been given to the role of clinical education in helping students with non-visible disabilities succeed in their chosen careers. Increasingly, law students are seeking accommodations for a range of mental health, cognitive, and learning disabilities. Law schools have become more adept at providing accommodations in academic classes to qualified students ...


Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J. Mar 2008

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper ...


Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy Aug 2007

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Boston College Law School Faculty Papers

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers ...


Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers Apr 2007

Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers

Boston College Law School Faculty Papers

The law of restitution has been the forgotten step-child of American private law for many decades. The American Law Institute’s current project to produce a new restatement of the law of restitution holds the promise of bringing the subject to the foreground and removing some of the confusion that many lawyers and judges feel in approaching the topic. One of the important issues that must be addressed in any comprehensive treatment of the law of restitution is how to treat those areas where the possibility of recovery based on the unjust enrichment principle overlaps with recovery based on the ...


The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman Aug 2006

The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman

Boston College Law School Faculty Papers

In 1938, in NLRB v. Mackay Radio & Telegraph Co., the Supreme Court offered one of its earliest interpretations of the National Labor Relations Act. Although the Court’s holding provided that employers may not discriminate against employees for their union activity when the strike is over and workers are reinstated, dicta in the opinion also provided that under the NLRA employers enjoy an unrestricted right to replace strikers. In the 70 years since the Court’s announcement, scholars remain baffled by the contradictions presented by the “Mackay doctrine”—a rule that forbids employers from discharging legally protected strikers while, at ...


Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham May 2006

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

Boston College Law School Faculty Papers

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML’s social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML’s advantages while minimizing risks, this Article envisions creating ...


The Notion Of Solidarity And The Secret History Of American Labor Law, Thomas C. Kohler Apr 2006

The Notion Of Solidarity And The Secret History Of American Labor Law, Thomas C. Kohler

Boston College Law School Faculty Papers

“Solidarity,” a term not overly familiar to Americans, sometimes seems to have as many meanings as it has users. The concept became incorporated into American thought during the 19th and 20th century waves of Catholic and Jewish immigration. It provides a European vision of communitarian social order that competes with the “unencumbered self”—America’s unique brand of individualism. Among philosophers, politicians, religious thinkers, and social activists, solidarity theory sought to redefine the then-prevailing views of social bonds. Nowhere is this more apparent than in the American labor movement, which espouses as its core values the principles of unity and ...


The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein Jan 2006

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Boston College Law School Faculty Papers

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out ...


Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay Sep 2005

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without ...


A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield Jun 2005

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Boston College Law School Faculty Papers

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that ...


Summers Of Our Discontent, Phyllis Goldfarb Apr 2005

Summers Of Our Discontent, Phyllis Goldfarb

Boston College Law School Faculty Papers

This essay analyzes the transcript of Lawrence Summers' remarks to the January 14 Conference on Diversifying the Science and Engineering Workforce. The purpose of a close textual analysis is to develop understanding of the firestorm unleashed by Summers' remarks. Which aspects of his remarks were so incendiary and what can be learned from them? In particular, the essay explores possible sources of Summers' stated hypotheses about gender differences that contribute to women's underrepresentation in certain fields. It also explores the material consequences of these hypotheses in women's lives to highlight the interconnection between such beliefs and discriminatory behavior ...


Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham Jan 2005

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by ...


Facilitating Auditing’S New Early Warning System: Control Disclosure, Auditor Liability And Safe Harbors, Lawrence A. Cunningham Apr 2004

Facilitating Auditing’S New Early Warning System: Control Disclosure, Auditor Liability And Safe Harbors, Lawrence A. Cunningham

Boston College Law School Faculty Papers

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime’s objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company’s future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses and potential effects is necessary. While liability ...


A New Product For The State Corporation Law Market: Audit Committee Certifications, Lawrence A. Cunningham Mar 2004

A New Product For The State Corporation Law Market: Audit Committee Certifications, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Audit committees of corporate boards of directors are central to corporate governance for many corporations. Their effectiveness in supervising financial managers and overseeing the financial reporting process is important to promote reliable financial statements. This centrality suggests that it is likewise important for investors and others to have a basis for justifiable confidence in audit committee effectiveness. At present, there is no such mechanism. This Article explains why, considers a way states can provide it and assesses as low the likelihood that states will do so. In the swirling corporate governance reforms led by SOX, the SEC, SROs and PCAOB ...


Entrepreneurs And The Estate Tax, James R. Repetti Jan 1999

Entrepreneurs And The Estate Tax, James R. Repetti

Boston College Law School Faculty Papers

This article analyzes the claims of a recent commentary by Douglas Holtz-Eakin, The Death Tax: Investments, Employment and Entrepreneurs, in 84 Tax Notes 782 (Aug. 2, 1999) that the estate tax discourages entrepreneurs from investing their resources in their entrepreneurial activities. The article concludes that the effects of the estate tax on entrepreneurs investing their resources are minimal for two reasons. First, the effective federal estate tax rates applicable to the yield from an investment when the entrepreneur is under age 60 are quite small (0.3% for investors under age 60, 0.1% for investors under age 50). The ...


The Disintegration Of Labor Law: Some Notes For A Comparative Study Of Legal Transformation, Thomas C. Kohler Jul 1998

The Disintegration Of Labor Law: Some Notes For A Comparative Study Of Legal Transformation, Thomas C. Kohler

Boston College Law School Faculty Papers

While acknowledging the difficulties inherent in a comparative approach to labor and employment ordering issues, the author argues that our times and circumstances force us to consider such a perspective. This essay looks at some of the background and characteristics of the labor law regimes of the United States and Germany to reflect on where we have been and where we might be going. The author concludes that we stand at the edge of a new world, one that may well entail both a new culture of work and ways of being for all its inhabitants.


Retirement Incentives In The Twenty First Century: The Move Toward Employer Control Of The Adea, Judith A. Mcmorrow Jan 1997

Retirement Incentives In The Twenty First Century: The Move Toward Employer Control Of The Adea, Judith A. Mcmorrow

Boston College Law School Faculty Papers

No abstract provided.


The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti Jan 1997

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

Boston College Law School Faculty Papers

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage ...


The Overlooked Middle, Thomas C. Kohler Jan 1993

The Overlooked Middle, Thomas C. Kohler

Boston College Law School Faculty Papers

In this Article, the author argues that significant elements concerning the discussion of labor law reform have been overlooked and that the steady decline of unions is not in fact an isolated occurrence. It is instead part of a much broader and deeply troubling trend, which has affected every mediating group in our society. However, our blinkered insistence on treating the deterioration of autonomous employee associations as a solitary phenomenon has precluded us from comprehending either the complexity of its causes or the full extent of its implications. The author posits, therefore, that there is a pronounced tendency to overlook ...


Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay Aug 1990

Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay

Boston College Law School Faculty Papers

This Article is concerned with legal services lawyers and how they ethically might allocate their time and resources among their clients. Part I of this Article describes the institutional terrain of legal services practice and introduces the concept of the lawyer as street-level bureaucrat, operating within a complex, high demand human services bureaucracy. Part II discusses the problems inherent in attempts to ration care within a subsidized law practice. The purpose of Part II is to reveal the practice tensions that establishment professional ethics fail to accommodate, and that form an underlying justification for a discussion of triage principles. Part ...


Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller Jun 1988

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Boston College Law School Faculty Papers

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and ...


Retirement And Worker Choice: Incentives To Retire And The Age Discrimination In Employment Act, Judith A. Mcmorrow Jan 1988

Retirement And Worker Choice: Incentives To Retire And The Age Discrimination In Employment Act, Judith A. Mcmorrow

Boston College Law School Faculty Papers

No abstract provided.


The Article 2 Merchant Rules: Karl Llewellyn’S Attempt To Achieve The Good, The True, The Beautiful In Commercial Law., Ingrid Michelsen Hillinger Jan 1985

The Article 2 Merchant Rules: Karl Llewellyn’S Attempt To Achieve The Good, The True, The Beautiful In Commercial Law., Ingrid Michelsen Hillinger

Boston College Law School Faculty Papers

In 1949, the Uniform Commercial Code was unveiled by Karl Llewellyn and his drafting-crew, which legally distinguished merchants and nonmerchants within Article 2 of the Code. However, the author suggests that a merchant muddle has arisen due to a fundamental misunderstanding of the nature and purpose of Article 2, which the author argues was never intended to codify merchant custom and trade usage. Section I of the article describes and then refutes the perception that the merchant rules codify actual business practices. It goes on to discuss some of the actual considerations that prompted the substantive content of the merchant ...


Freedom And Choice In Constitutional Law, John H. Garvey Jun 1981

Freedom And Choice In Constitutional Law, John H. Garvey

Boston College Law School Faculty Papers

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind – freedoms, which protect the right to make choices – pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire ...