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Boston College Law School

Boston College Law School Faculty Papers

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Full-Text Articles in Law

State Net Neutrality, Daniel A. Lyons Oct 2019

State Net Neutrality, Daniel A. Lyons

Boston College Law School Faculty Papers

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but ...


The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay Oct 2019

The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay

Boston College Law School Faculty Papers

This essay, in honor of the twenty-fifth anniversary of the founding of the Clinical Law Review, reflects on the gradual emergence, and the limited influence, of transactional practice within clinical scholarship as reflected by writing in the Clinical Law Review since 1994. The essay offers three observations. First, a review of the fifty or so published issues of the journal demonstrates that writing about transactional practice has increased demonstrably between 1994 and 2019. Second, that development notwithstanding, it appears that when writers, even in recent years, write about lawyering in some generalizable fashion, the examples that appear in those works ...


Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2019-0039, Patricia A. Mccoy Sep 2019

Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2019-0039, Patricia A. Mccoy

Boston College Law School Faculty Papers

In this comment letter, Professor McCoy responds to the Advance Notice of Proposed Rulemaking on Qualified Mortgages issued by the Consumer Financial Protection Bureau.


Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. Mccoy Jun 2019

Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. Mccoy

Boston College Law School Faculty Papers

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

In 2017, after legislation to weaken the Bureau’s structure failed in Congress and constitutional challenges to ...


Comment Of Legal Scholars On Authority To Require Supervision And Regulation Of Certain Nonbank Financial Companies, Financial Stability Oversight Council Rin 4030-Aa00, Daniel Schwarcz, Patricia A. Mccoy, Jeremy Kress May 2019

Comment Of Legal Scholars On Authority To Require Supervision And Regulation Of Certain Nonbank Financial Companies, Financial Stability Oversight Council Rin 4030-Aa00, Daniel Schwarcz, Patricia A. Mccoy, Jeremy Kress

Boston College Law School Faculty Papers

Professor McCoy coauthored this comment on a proposal by the Financial Stability Oversight Council to overhaul systemic risk regulation for nonbank financial firms.


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 ...


Undue Influence: A Prosecutor’S Role In Parole Proceedings, R. Michael Cassidy Apr 2019

Undue Influence: A Prosecutor’S Role In Parole Proceedings, R. Michael Cassidy

Boston College Law School Faculty Papers

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings. He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information ...


Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield Mar 2019

Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield

Boston College Law School Faculty Papers

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...


Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shu-Yi Oei, Leigh Osofsky Mar 2019

Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shu-Yi Oei, Leigh Osofsky

Boston College Law School Faculty Papers

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held ...


Copyright Rulemaking: Past As Prologue, Joseph Liu Feb 2019

Copyright Rulemaking: Past As Prologue, Joseph Liu

Boston College Law School Faculty Papers

In deciding what rulemaking authority the Copyright Office should have, it may be helpful to take a close and careful look at how the Office has historically exercised its rulemaking powers. This article undertakes this task and makes a number of observations: (1) the Office’s rulemaking activity increased dramatically after passage of the 1976 Act; (2) the rules issued fall into a number of identifiable categories; (3) by far the largest category consists of rules administering statutory licenses set forth in the Act; and (4) the smallest category consists of precisely the kinds of substantive rules that some commentators ...


The Antideficiency Act Charade: A Low-Key Separation Of Powers Drama, Daniel A. Lyons Jan 2019

The Antideficiency Act Charade: A Low-Key Separation Of Powers Drama, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Labor Law, Antitrust Law, And Economics Professors' Comment On The National Labor Relations Board's Proposed Joint-Employer Rule, Hiba Hafiz, Brishen Rogers, Kenneth G. Dau-Schmidt, Kate Bronfenbrenner Jan 2019

Labor Law, Antitrust Law, And Economics Professors' Comment On The National Labor Relations Board's Proposed Joint-Employer Rule, Hiba Hafiz, Brishen Rogers, Kenneth G. Dau-Schmidt, Kate Bronfenbrenner

Boston College Law School Faculty Papers

Comment drafted to the National Labor Relations Board's request for comment on a proposed rule-making to define what constitutes a "joint employer" for the purposes of the National Labor Relations Act's strictures.


Tax Competition And Tax Cooperation: A Survey And Reassessment, Hugh J. Ault Jan 2019

Tax Competition And Tax Cooperation: A Survey And Reassessment, Hugh J. Ault

Boston College Law School Faculty Papers

No abstract provided.


Narrowing The Digital Divide: A Better Broadband Universal Service Program, Daniel Lyons Jan 2019

Narrowing The Digital Divide: A Better Broadband Universal Service Program, Daniel Lyons

Boston College Law School Faculty Papers

Universal service has long been an integral component of American telecommunications policy. As more activities move online, it becomes increasingly important to narrow the digital divide by helping low-income Americans get online and by extending broadband networks into unserved areas.

Unfortunately, the Federal Communications Commission’s reforms are unlikely to help solve this problem. The Commission is repurposing an $8 billion telephone subsidy program to focus instead on broadband networks. But when pressed, the agency admits that it has no proof that the program meaningfully affected telephone adoption rates, and it offers little evidence that it will fare any better ...


10 Reasons Why Congress Should Defund Ice’S Deportation Force, Kari E. Hong Jan 2019

10 Reasons Why Congress Should Defund Ice’S Deportation Force, Kari E. Hong

Boston College Law School Faculty Papers

Calls to abolish ICE, the Immigration and Customs Enforcement agency tasked with deportations, are growing. ICE consists of two agencies – Homeland Security Investigations (HSI), which investigates transnational criminal matters, and Enforcement and Removal Operations (ERO), which deports non-citizens. The calls to abolish ICE focus on the latter, the ERO deportation force.

Defenders proffer that the idea is silly, that abolition could harm public safety, or that advocates of abolition must first explain what, if anything, would replace the agency. Those reasons are not persuasive. The first ignores that federal agencies are not eternal and have been created and eliminated as ...


The Future Of Economic And Social Rights: Introduction, Katharine G. Young Jan 2019

The Future Of Economic And Social Rights: Introduction, Katharine G. Young

Boston College Law School Faculty Papers

The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a conception of development in which economic growth was considered a necessary (and, by some, sufficient) condition for rights fulfillment, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. Yet today, under conditions of immense poverty, insecurity, and social distress, the rights to education, health care, housing, social security, food, water, and sanitation are increasingly at the top of the human rights agenda ...


Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young Jan 2019

Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young

Boston College Law School Faculty Papers

The obligation of ‘progressive realization’ under the International Covenant on Economic and Social Rights is often interpreted in light of available resources - this chapter examines, instead, the variable of time. Noting that delay of rights is akin to denial of rights, Young explores the various ways in which accountability models, at the international level, have elaborated on concrete, and temporal, benchmarks. These include the minimum core, and non-retrogression doctrines, and the exercises in comparative rankings. These are important sources of accountability, especially for positive obligations. And yet with the promise of rights, law nevertheless structures the expectations of rights-holders. This ...


The Rise Of The Working Class Shareholder: An Application, An Extension And A Challenge, Kent Greenfield Jan 2019

The Rise Of The Working Class Shareholder: An Application, An Extension And A Challenge, Kent Greenfield

Boston College Law School Faculty Papers

A review and analysis of David Webber's book The Rise of the Working Class Shareholder, with ideas on how to extend his points, and a challenge to one of his underlying assumptions with regard to the impact of Citizens United v Federal Election Commission.


The Faulty Foundation Of The Draft Restatement Of Consumer Contracts, Adam J. Levitin, Nancy S. Kim, Christina L. Kunz, Peter Linzer, Patricia A. Mccoy, Juliet M. Moringiello, Elizabeth A. Renuart, Lauren E. Willis Jan 2019

The Faulty Foundation Of The Draft Restatement Of Consumer Contracts, Adam J. Levitin, Nancy S. Kim, Christina L. Kunz, Peter Linzer, Patricia A. Mccoy, Juliet M. Moringiello, Elizabeth A. Renuart, Lauren E. Willis

Boston College Law School Faculty Papers

Professor Gregory Klass’s replication study of the Draft Restatement of the Law of Consumer Contract’s empirical analysis of privacy policies found troubling and pervasive problems with the Reporters’ coding of cases. We extended Professor Klass’s study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability of unilateral contract modifications and those on the enforceability of clickwrap assent. For the replication, we reviewed 186 cases blind to the Reporters’ coding.

We found that nearly two-thirds of the cases in the unilateral modification dataset were irrelevant to the hypothesis ...


Collaborations Between The Juvenile Justice System And Home Visiting Programs, Francine Sherman, Jessica Greenstone Winestone, Rebecca Fauth Dec 2018

Collaborations Between The Juvenile Justice System And Home Visiting Programs, Francine Sherman, Jessica Greenstone Winestone, Rebecca Fauth

Boston College Law School Faculty Papers

No abstract provided.


History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette Dec 2018

History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette

Boston College Law School Faculty Papers

No abstract provided.


The "Guarantee" Clause, Ryan C. Williams Dec 2018

The "Guarantee" Clause, Ryan C. Williams

Boston College Law School Faculty Papers

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield Nov 2018

Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


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.


Third Party Funding In International Investor-State Arbitration, Frank J. Garcia, Kirrin Hough Nov 2018

Third Party Funding In International Investor-State Arbitration, Frank J. Garcia, Kirrin Hough

Boston College Law School Faculty Papers

No abstract provided.


Tax Issues In The Sharing Economy: Implications For Workers, Shu-Yi Oei, Diane M. Ring Nov 2018

Tax Issues In The Sharing Economy: Implications For Workers, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

A growing number of individuals now perform work in the sector known as the “sharing economy,” and their participation raises important tax and regulatory questions. In this chapter, we survey some of the key tax issues confronting individuals operating in the sharing economy in the United States. Many of the tax implications that arise in sharing economy work stem from the threshold decision by many platforms to classify such individuals as independent contractors rather than employees. Therefore, we first discuss how the threshold classification decision affects the substantive and compliance-related tax issues faced by individuals operating in the sharing economy ...


Tax Issues In The Sharing Economy: Implications For Workers, Diane Ring, Shu-Yi Oei Nov 2018

Tax Issues In The Sharing Economy: Implications For Workers, Diane Ring, Shu-Yi Oei

Boston College Law School Faculty Papers

In this chapter, we survey some of the key tax issues that have confronted individuals operating in the sharing economy. While our discussion focuses on the United States, these classification, documentation, and compliance challenges frequently arise in other countries. Many of the tax implications of this work stem from the threshold decision by many platforms to classify such individuals as independent contractors rather than employees. Therefore, we first discuss how the threshold classification decision affects the substantive and compliance- related tax issues faced by individuals operating in the sharing economy. We briefly summarize the doctrinal tax rules governing income taxation ...


E-Rulemaking And The Politicization Of The Comment Process, Daniel A. Lyons Oct 2018

E-Rulemaking And The Politicization Of The Comment Process, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


On Uses And Misuses Of Human Rights In European Constitutionalism, Vlad F. Perju Oct 2018

On Uses And Misuses Of Human Rights In European Constitutionalism, Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


Discriminatory Job Knowledge Tests, Police Promotions, And What Title Vii Can Learn From Tort Law, Mark S. Brodin Oct 2018

Discriminatory Job Knowledge Tests, Police Promotions, And What Title Vii Can Learn From Tort Law, Mark S. Brodin

Boston College Law School Faculty Papers

Nationally, the continued use of selection devices by police departments—such as multiple-choice examinations requiring memorization of police manuals—stifles advancement for a disproportionate number of otherwise qualified minority candidates, and hinders the desired diversification of the upper ranks. These exams have little to do with predicting success as a sergeant or other police supervisor. The traditional Title VII approach, a disparate impact challenge, has proven unsatisfactory given the relative ease with which the exams can be “content validated” in court. This Article proposes a new approach familiar to tort lawyers—the inference of intent from actions taken with foreseeable ...