Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 41

Full-Text Articles in Law

The Effect Of Economic Integration With China On The Future Of American Corporate Law, Joseph Vining Apr 2010

The Effect Of Economic Integration With China On The Future Of American Corporate Law, Joseph Vining

Law & Economics Working Papers

China's development into a world economic power and its continuing integration with the United States economy raise the question whether China's own history and the socialist context of its domestic corporate law may affect the meaning of business terms in use both internationally and in American domestic corporate law. Of particular interest is the question whether China's entry and impact may blunt the late-twentieth century effort in the United States to change the legal sense of the purpose of an American business corporation.


Corporate Law And The Rhetoric Of Choice, Kent Greenfield Feb 2009

Corporate Law And The Rhetoric Of Choice, Kent Greenfield

Boston College Law School Faculty Papers

Rhetorically, the notion of choice has always been a powerful one in politics and law. This essay is intended to offer a note of caution about its use. Despite its progressive hue of individual freedom, the rhetoric of choice increasingly tends to be a notion used to defend and uphold existing matrices of economic and social power. This is because the rhetoric of choice is an excellent way to support exiting power relationships. The assertion that people acting within such power relationships are simply choosing their current situation undermines efforts to change those relationships. The powerful stay powerful; the weak ...


Feminizing Capital: A Corporate Imperative, Darren Rosenblum Jan 2009

Feminizing Capital: A Corporate Imperative, Darren Rosenblum

Pace Law Faculty Publications

This Article argues that Norway’s Corporate Board Quota Law (“CBQ”) fosters a productive symbiosis between the public and private spheres. Recent studies indicate that higher numbers of women in executive positions result in stronger rates of corporate return on equity (“ROE”). Countries with higher levels of women's political representation also tend to have higher levels of economic growth. Increasing women's workforce participation outside the home can drive overall economic growth. These factors prompted the CBQ's proponents to argue for the economic imperative of women's corporate leadership. The CBQ will not only ameliorate gender inequality, but ...


Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay Apr 2007

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Boston College Law School Faculty Papers

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns ...


No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson Mar 2007

No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson

University of Pittsburgh School of Law Working Paper Series

Based upon substantial numbers of women enrolling in MBA and law programs, from the 1970s onward expectations have been high. With 25 and later 36% female MBA matriculates, and 33% and later 49-51% in law, by the 21st Century the expectation was that great numbers of women would populate the CEO suites and boardrooms in the U.S.

NO SEAT AT THE TABLE (NYU Press 2007) documents how the numbers lag badly behind the expectations, and how the reality lags further yet behind the numbers. Analyses of Fortune 500 proxy data, as the enclosed chapter demonstrates, produce scant reason to ...


Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells Dec 2006

Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells

Boston College Law School Faculty Papers

This paper recounts a number of lessons learned in the course of serving as the Director of Public Charities for the Commonwealth of Massachusetts. It incorporates these lessons into a discussion of the proper analysis of charitable organizations. Should charities be analogized to for-profit firms or are they something that is essentially different? The paper argues that they lack many of the attributes of Coasian firms and that they should be considered as “consumption groups” that have different methods of accountability.


The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater Sep 2006

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The functional linkages between law and media have long been signficant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public ...


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 ...


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 ...


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 ...


Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


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 ...


Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham Mar 2005

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it. Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment ...


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 ...


Does The Tax Law Discriminate Against The Majority Of American Children: The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education?, Lester B. Snyder Oct 2004

Does The Tax Law Discriminate Against The Majority Of American Children: The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education?, Lester B. Snyder

University of San Diego Law and Economics Research Paper Series

Our graduate income tax structure provides an incentive to shift income to lower-bracket family members. However, some parents have much more latitude to shift income to their children than do others. Income derived from services and private business-by far the majority of American income-is less favored than income derived from publicly traded securities. The rationale given for this discrimination is that parents in services or private business, as opposed to those in securities, do not actually part with control of their property. This article explores these tax broader (yet subtle) tax benefits and their impact on the majority of children ...


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 ...


An Uncertain Risk And An Uncertain Future: Assessing The Legal Implications Of Mercury Amalgram Fillings., Mary Ann Chirba, Carolyn M. Welshhans Jan 2004

An Uncertain Risk And An Uncertain Future: Assessing The Legal Implications Of Mercury Amalgram Fillings., Mary Ann Chirba, Carolyn M. Welshhans

Boston College Law School Faculty Papers

Trying to buy a mercury thermometer at the local pharmacy these days will result in a deluge of information regarding the risks of mercury and the proper disposal protocol for mercury thermometers as hazardous waste. Yet, inquiring about the risks of placing mercury in one’s mouth, in the form of a dental filling, is likely to meet with resounding assurances of safety from the dental profession. While such comforting disclaimers are meant to ease patient concerns, many continue to worry about the safety of dental mercury. This article will begin by describing the many safety concerns that surround the ...


Gradgrind’S Education: Using Dickens And Aristotle To Understand (And Replace?) The Business Judgment Rule, Kent Greenfield, John E. Nilsson Jan 2001

Gradgrind’S Education: Using Dickens And Aristotle To Understand (And Replace?) The Business Judgment Rule, Kent Greenfield, John E. Nilsson

Boston College Law School Faculty Papers

This article uses literature and philosophy to help explain and critique existing corporate law doctrine. Starting from Charles Dickens's Hard Times, the article provides a new explanation for one of the great puzzles of existing corporate law doctrine, the coexistence of the strict duty of management to maximize profits and the "business judgment rule," the practice of courts to review management decisions with great deference. The article argues that the business judgment rule is a necessary corrective to the irrationality of the underlying duty to maximize profits. The article makes this argument by analogizing corporate law to Dickens's ...


Emerging Models For Alternatives To Marriage, Sanford N. Katz Jan 2000

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Boston College Law School Faculty Papers

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to ...


Fiduciary Relationships Are Not Contracts, Scott T. Fitzgibbon Jan 1999

Fiduciary Relationships Are Not Contracts, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

This Article, which explores the nature of fiduciary relationships, demonstrates that these relationships arise and function in ways that are alien to contractualist thought. While the relationships may, like marriage relationships, be part of the same genus, they are indeed members of a different species. Fiduciary relationships differ both in doctrinal structure and ethical basis. However, some contractualist writing denies one or the other of these two propostitions. This Article, therefore, aims to establish that both are in fact true. The author presents that fiduciary relationships have value and serve purposes that are largely unknown to contractualists. Furthermore, these relationships ...


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 Three Economies: An Essay In Honor Of Joseph Sax, Zygmunt J.B. Plater Jun 1998

The Three Economies: An Essay In Honor Of Joseph Sax, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

How does one evaluate the important public values and impacts of things that do not have a market price and then integrate them into the fabric of our system of social governance? That question lies within most or all of Joseph Sax's work over the years. The first part of this article represents an attempt to distill some of Joseph Sax's intellectual dimensions, beyond those already chronicled in the comments of other contributors to this symposium, with some linked themes and observations drawn from Sax beyond his writings. The second part, instigated by several of Sax's articles ...


The Failure Of The Freedom-Based And Utlilitarian Arguments For Assisted Suicide, Scott T. Fitzgibbon Jan 1997

The Failure Of The Freedom-Based And Utlilitarian Arguments For Assisted Suicide, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

In recent years, numerous initiatives have been launched to promote physician-assisted suicide. Numerous statutes have been proposed, and one (in Oregon) has been enacted. The United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Second Circuit were recently persuaded to recognize constitutionally protected rights to assisted suicide, although their decisions have been reversed by the Supreme Court. An international organization called the World Federation of Right-to-Die Societies furthers such efforts in other countries. The two most common justifications for such initiatives are that assisted suicide enhances freedom or liberty, and that ...


Transracial Adoption (Tra): Old Prejudices And Discrimination Float Under A New Halo, Ruth-Arlene W. Howe Jan 1997

Transracial Adoption (Tra): Old Prejudices And Discrimination Float Under A New Halo, Ruth-Arlene W. Howe

Boston College Law School Faculty Papers

The primary aim of this article is to place the late twentieth century Transracial Adoption (TRA) of African-American children accurately within the context of the child welfare system milieu out of which it emerged. It also endeavors to provide thoughtful scholars and child advocates a new lens with which to assess the past purpose, function, and efficacy of TRA. The author hopes that through these considerations more careful regulation and monitoring of future TRA placements will emerge, which will both protect the interests of the African-American adoptee and respect the African-American community.