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Boston College Law School Faculty Papers

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Against Bidimensional Supremacy In Eu Constitutionalism, Vlad F. Perju Jul 2020

Against Bidimensional Supremacy In Eu Constitutionalism, Vlad F. Perju

Boston College Law School Faculty Papers

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction ...


Leveraging Open Educational Resources & Affordable Course Materials In Legal Education, Mary Ann Neary, Lisa Davis May 2020

Leveraging Open Educational Resources & Affordable Course Materials In Legal Education, Mary Ann Neary, Lisa Davis

Boston College Law School Faculty Papers

In an opinion piece for the New York Times, Columbia Law School Professor Tim Wu lamented “the outlandish prices of the books we assign.” He questioned whether the rising costs of college textbooks is worth the cost to students. (Read the article at bit.ly/MJ20NYTwu.) Professor Wu noted that there are high-quality options for assigning reading—options without the cost (over $200) of the typical law school casebook with supplement. OpenStax, a major force in open educational undergraduate college textbooks, estimates that in 2019, 3 million students were using its texts, for a savings of $233 million. (Read more ...


White Male Aristocracy, Mary Sarah Bilder Apr 2020

White Male Aristocracy, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written for the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Gerry Leonard and Saul Cornell’s fascinating book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s tells the story, as I put in in a blurb, “of the unsettling transformation of aristocratic-tinged constitutional republic into a partisan white male democracy.” In this year where we recall the Nineteenth Amendment’s re-enfranchisement of women, the Leonard/Cornell book demands that we reevaluate the way we describe the early nineteenth-century ...


The New Fiduciaries, Natalya Shnitser Apr 2020

The New Fiduciaries, Natalya Shnitser

Boston College Law School Faculty Papers

The regulation of employer-sponsored retirement plans in the United States relies on fiduciary standards drawn from donative trust law to regulate the conduct of those with authority or discretion over plan assets. The mismatch between the trust-based fiduciary framework and the rights and interests of employers and employees has contributed to the high cost of pension fund investing and the significant gaps in pension coverage in the private sector. In recent years, state and local governments have stepped in to reduce the retirement coverage gap by creating state-facilitated retirement savings programs for private-sector workers who lack access to employment-based coverage ...


Are Two Employers Better Than One? An Empirical Assessment Of Multiple-Employer Retirement Plans, Natalya Shnitser Apr 2020

Are Two Employers Better Than One? An Empirical Assessment Of Multiple-Employer Retirement Plans, Natalya Shnitser

Boston College Law School Faculty Papers

At least 50% of Americans have not saved enough for retirement. This is in part due to a lack of access to employer-sponsored retirement plans. Nearly a third of the U.S. workforce is employed by businesses that choose not to sponsor workplace retirement plans for their employees. Moreover, plans set up by smaller employers tend to be plagued by high fees that eat away at retirement savings. To increase worker participation in low-cost retirement plans, lawmakers across the political spectrum have coalesced around reforms to allow more small employers to pool their assets and to centralize plan administration through ...


Ownership Work And Work Ownership, Hiba Hafiz Mar 2020

Ownership Work And Work Ownership, Hiba Hafiz

Boston College Law School Faculty Papers

Professor Lee Fennell’s groundbreaking Slices and Lumps incisively reconceptualizes how the gig—or “slicing”—economy impacts the structuring of work. But it goes even further to alert us to how “delumping the working experience” can transform the infrastructure of work, from an individual’s task design to the agglomeration costs and benefits of untying and retying workers to desks, work to benefits, worksites to surrounding communities.

This Essay takes seriously her invitation to refine and adapt its insights to radically readjust work law in two ways. First, it explores how employer’s property rights over worksites are “lumpy” when ...


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 ...


Labor's Antitrust Paradox, Hiba Hafiz Mar 2020

Labor's Antitrust Paradox, Hiba Hafiz

Boston College Law School Faculty Papers

Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that ...


Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield Mar 2020

Trademarks, Hate Speech, And Solving A Puzzle Of Viewpoint Bias, Kent Greenfield

Boston College Law School Faculty Papers

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination.

In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty ...


Why The Ability-To-Repay Rule Is Vital To Financial Stability, Patricia A. Mccoy, Susan M. Wachter Mar 2020

Why The Ability-To-Repay Rule Is Vital To Financial Stability, Patricia A. Mccoy, Susan M. Wachter

Boston College Law School Faculty Papers

Following the 2008 financial crisis, Congress required residential mortgage lenders to make a reasonable determination of borrowers’ ability to repay before extending credit. Most regard this ability-to-repay rule as a consumer-protection provision. Less well-appreciated is the rule’s importance in protecting financial stability.

We respond to a landmark 2015 critique in the University of Pennsylvania Law Review, which argued that the rule will fail to limit bubbles because mortgage lenders will underestimate their liability exposure when home prices are rapidly appreciating and ignore the rule as a consequence. On the contrary, we argue that the ability-to-repay rule acts as a ...


The Macroprudential Implications Of The Qualified Mortgage Debate, Susan M. Wachter, Patricia A. Mccoy Mar 2020

The Macroprudential Implications Of The Qualified Mortgage Debate, Susan M. Wachter, Patricia A. Mccoy

Boston College Law School Faculty Papers

In January 2021, the Consumer Financial Protection Bureau (CFPB or Bureau) will face a decision: renew its special definition for Qualified Mortgages (QMs) made by Fannie Mae and Freddie Mac, abolish that definition, or adopt some other approach to QMs. This seemingly arcane issue, which concerns the so-called Government-Sponsored Enterprise (GSE) Patch,is the subject of fierce debate and a recent Advance Notice of Proposed Rulemaking (ANPR) by the CFPB.

While ostensibly inconsequential to those unfamiliar with the topic, this decision may open the floodgates again to a private-label mortgage system without the necessary regulatory controls to prevent ruinous competition ...


Tax Law's Workplace Shift, Shu-Yi Oei, Diane M. Ring Mar 2020

Tax Law's Workplace Shift, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace ...


The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper Feb 2020

The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper

Boston College Law School Faculty Papers

Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This Article examines the lack of truly independent immigration judges (IJs) through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient ...


The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder Jan 2020

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Boston College Law School Faculty Papers

In written celebration of Kent Newmyer’s intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging ...


"Turn It, Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah: The Rabbinic Idea Of Law, Cathleen Kaveny Jan 2020

"Turn It, Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah: The Rabbinic Idea Of Law, Cathleen Kaveny

Boston College Law School Faculty Papers

After reading Professor Chaim Saiman’s book, Halakhah: The Rabbinic Idea of Law, I have a desire to learn more about halakhah. I have a sense of the questions I want to ask, and the issues I want to pursue, given my own commitments and training, which are both similar to and yet very different from his. Like Professor Saiman, I am a secular lawyer. I am also a Christian theological ethicist. As I worked through the book, I came to see that halakhah has significant overlap not only with canon law, which aims to regulate behavior in the community ...


Identity Federalism In Europe And The United States, Vlad F. Perju Jan 2020

Identity Federalism In Europe And The United States, Vlad F. Perju

Boston College Law School Faculty Papers

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives too have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional ...


Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong Jan 2020

Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong

Boston College Law School Faculty Papers

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and ...


Developing Fiduciary Culture In Vietnam, Brian Jm Quinn Jan 2020

Developing Fiduciary Culture In Vietnam, Brian Jm Quinn

Boston College Law School Faculty Papers

This Article examines Vietnam’s efforts during the past two and a half decades to build up its legal infrastructure during its transition from a centrally planned to a market economy. In particular, this Article will focus on the development of legal and regulatory infrastructure to support the development of the corporate sector and fiduciary culture in Vietnam. Following the collapse of the Soviet Bloc and Soviet-styled central planning beginning in the late 1980s, transition countries like Vietnam faced immediate and critical challenges to transition to new market oriented models of organization. Currently, this transition from central planning to markets ...


Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser Dec 2019

Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser

Boston College Law School Faculty Papers

The Supreme Court heard oral argument on Wednesday in Intel Corp. Investment Policy Committee v. Sulyma, a case that puts a spotlight on the disclosures that retirement plans provide to plan participants. Under the Employee Retirement Income Security Act of 1974 (ERISA), participants in employer-sponsored retirement plans have the right to challenge the prudence of decisions that plan fiduciaries make about the investment options available through the plan. ERISA sets time limits for bringing such suits. Section 413(1) of ERISA gives plaintiffs six years after the end of the fiduciary breach, violation or omission. Section 413(2) imposes a ...


Brief Thoughts About If Value/Then Right, Alfred C. Yen Dec 2019

Brief Thoughts About If Value/Then Right, Alfred C. Yen

Boston College Law School Faculty Papers

In this brief Essay, I will discuss something of interest to Professor Gordon and others, namely the “if value/then right” principle and its consequences for intellectual property, particularly copyright law. That principle, which the U.S. Copyright Act does not embrace, expresses the intuition that “wherever value is received, a legal duty to pay arises, regardless of whether imposing that legal duty serves public welfare.” The if value/then right principle concerns Professor Gordon because she believes that it expresses socially unproductive hostility to free riding. If a legal obligation to pay arises whenever someone receives a benefit from ...


Resistance Lawyering, Daniel S. Farbman Dec 2019

Resistance Lawyering, Daniel S. Farbman

Boston College Law School Faculty Papers

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were ...


Appraisal Confusion: The Intended And Unintended Consequences Of Delaware's Nascent Pristine Deal Process Standard, Alex Peña, Brian Jm Quinn Dec 2019

Appraisal Confusion: The Intended And Unintended Consequences Of Delaware's Nascent Pristine Deal Process Standard, Alex Peña, Brian Jm Quinn

Boston College Law School Faculty Papers

In a merger, shareholders who believe the consideration being offered is too low have a statutory right to seek fair value for their shares through a judicial process called appraisal. In recent years, there has been an explosion in the number of appraisal actions leading some to argue that the remedy was being abused. In this Article, we argue that a recent line of cases by the Delaware Supreme Court that places heavy reliance on merger price as part of the judicial determination of fair value in appraisal proceedings is misguided and may lead to unintended consequences. Rather than rely ...


Argument Preview: Court To Consider “Actual Knowledge” In Determining The Window For Filing Claims Against Retirement-Plan Fiduciaries, Natalya Shnitser Nov 2019

Argument Preview: Court To Consider “Actual Knowledge” In Determining The Window For Filing Claims Against Retirement-Plan Fiduciaries, Natalya Shnitser

Boston College Law School Faculty Papers

Under the Employee Retirement Income Security Act of 1974 (ERISA), participants in employer-sponsored retirement plans – including 401(k) plans – have the right to challenge the prudence of decisions that plan fiduciaries make in selecting and managing the investment options available to participants. Participants must bring such suits within the time limits set by law. Section 413(1) of ERISA provides that claims must be brought within six years after the end of the fiduciary breach, violation or omission. Section 413(2) imposes a shorter limitation period when the participant has “actual knowledge” of the breach or violation. In such cases ...


Justice Thomas’S Concurrence Says Much—And Little—About Preemption Of State Net Neutrality Efforts, Daniel A. Lyons Nov 2019

Justice Thomas’S Concurrence Says Much—And Little—About Preemption Of State Net Neutrality Efforts, Daniel A. Lyons

Boston College Law School Faculty Papers

A little-noticed concurrence in denial of certiorari by Justice Clarence Thomas may have caused a wrinkle in the ongoing net neutrality debate. Late last month, the Supreme Court quietly declined to review Lipschultz v. Charter Advanced Services (MN), LLC, an Eighth Circuit decision preempting state VoIP regulation. While concurring in the denial, Justice Thomas raised concerns about the underlying theory of federal preemption, noting that “[i]t is doubtful that a federal policy – let alone a policy of nonregulation – is” sufficient to support conflict preemption.

Justice Thomas’s concurrence – joined by Justice Neil Gorsuch – casts an interesting shadow on 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 ...


What Matter Of Soram Got Wrong: “Child Abuse” Crimes That May Trigger Deportation Are Constantly Evolving And Even Target Good Parents, Kari E. Hong, Philip L. Torrey Oct 2019

What Matter Of Soram Got Wrong: “Child Abuse” Crimes That May Trigger Deportation Are Constantly Evolving And Even Target Good Parents, Kari E. Hong, Philip L. Torrey

Boston College Law School Faculty Papers

Many are surprised to learn that crime-based deportations do not necessarily make intuitive sense. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a misdemeanor drug offense for which probation was imposed 20 years ago can be an “aggravated felony,” a category reserved for the presumably most serious offenses that result in detention, deportation, and denial of most forms of immigration relief. But a felony conviction for kidnaping may have no consequences at all. The crime of “child abuse, child neglect, or child abandonment” removal ground created by IIRIRA similarly leads to illogical results. This deportability ground ...


Amicus Brief: Smith V. Kelley, Natali De Corso, Rebecca Rabinowitz, Brian J.M. Quinn Oct 2019

Amicus Brief: Smith V. Kelley, Natali De Corso, Rebecca Rabinowitz, Brian J.M. Quinn

Boston College Law School Faculty Papers

Theories of successor liability and piercing the corporate veil are not substantive legal doctrines but rather shorthand descriptions of equitable remedies adopted by courts in the interests of fairness and justice. These interests include striking a balance between the limitation on shareholders’ individual liability – essential to the modern corporate form – and curtailing incentives for controllers of corporations to use the corporation as a weapon against innocent creditors. Applying principles of Equity, courts analyze a transaction according to its real nature, looking through its form to its substance and intent. Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 560 (2008 ...


Conflict Preemption Of State Net Neutrality Efforts After Mozilla, Daniel A. Lyons Oct 2019

Conflict Preemption Of State Net Neutrality Efforts After Mozilla, Daniel A. Lyons

Boston College Law School Faculty Papers

Earlier this week, the D.C. Circuit issued its long-awaited decision in Mozilla v. Federal Communications Commission. The court affirmed the Commission’s Restoring Internet Freedom (RIF) Order, identifying some flaws in the agency’s reasoning but finding the agency could likely correct those errors on remand without vacatur. While chastened by the ruling, some net neutrality advocates have identified a potential silver lining. The court vacated the portion of the RIF Order that expressly preempted state and local broadband regulations. Advocates have latched onto this holding as permission for legislatures to reimpose at the state level the restrictions that ...


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 ...


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 ...