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Boston College Law School Faculty Papers

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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 ...


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 ...


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.


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 ...


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 ...


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 ...


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 ...


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.


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.


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 ...


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.


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 ...


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

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

Boston College Law School Faculty Papers

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


Complementary Macroprudential Regulation Of Nonbank Entities And Activities, Patricia A. Mccoy, Daniel Schwarcz, Jeremy Kress Sep 2018

Complementary Macroprudential Regulation Of Nonbank Entities And Activities, Patricia A. Mccoy, Daniel Schwarcz, Jeremy Kress

Boston College Law School Faculty Papers

In this blog entry, the authors describe their forthcoming law review article in Southern California Law Review.


The Constitution To The Constitution, Mary Sarah Bilder Sep 2018

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


How To End “Illegal Immigration”, Kari E. Hong Sep 2018

How To End “Illegal Immigration”, Kari E. Hong

Boston College Law School Faculty Papers

Since President Trump has taken office, it is clearer than ever that there are two ways to end “illegal immigration.” The first route — started by President Obama and ratcheted up by President Trump with relentless cruelty — is an actual effort to deport millions and exclude millions more. The second is to legalize those without status who have been, are, and will continue to contribute to America’s families, communities, and future.

This essay argues that the latter choice, restoring the paths to legalization that once were part of our nation’s laws, is the only realistic way forward to restore ...


How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones Aug 2018

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.


Rethinking International Investment Governance: Principles For The 21st Century, Frank J. Garcia, Emma Aisbett, Bernali Choudhury, Olivier De Schutter, James Harrison, Song Hong, Lise Johnson, Mouhamadou Kane, Santiago Peña, Mattew Porterfield, Susan Sell, Stephen E. Shay, Louis T. Wells Aug 2018

Rethinking International Investment Governance: Principles For The 21st Century, Frank J. Garcia, Emma Aisbett, Bernali Choudhury, Olivier De Schutter, James Harrison, Song Hong, Lise Johnson, Mouhamadou Kane, Santiago Peña, Mattew Porterfield, Susan Sell, Stephen E. Shay, Louis T. Wells

Boston College Law School Faculty Papers

Rethinking International Investment Governance: Principles for the 21st Century - written over the course of a week by a distinguished group of experts in international economic governance using the Booksprint process - aims to serve as a practical resource for those interested in the elements of an international investment system that promotes sustainable development and achieves legitimacy by providing benefits to all stakeholders.

The objective of Rethinking International Investment Governance is to change the terms of the debate so that societal values and goals are at the center of discussions about each reform proposal and process. This book rethinks international investment law ...


The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin Aug 2018

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Boston College Law School Faculty Papers

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup ...


Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R. Tremblay Jul 2018

Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R. Tremblay

Boston College Law School Faculty Papers

Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and ...


An Antitrust-Informed Approach To Regulating Internet Interconnection, Daniel A. Lyons Jul 2018

An Antitrust-Informed Approach To Regulating Internet Interconnection, Daniel A. Lyons

Boston College Law School Faculty Papers

For over a decade, net neutrality has dominated telecommunications policy. Advocates targeted broadband networks because of their strategic position as the gateway to consumers, which potentially positions them to shape the flow of information online. Yet as former the Federal Communications Commission (“FCC” or the “Commission”) Chairman Julius Genachowski noted, these broadband providers are merely the “onramps” to the Internet— the last mile of a system that brings over 35,000 networks together to move information packets from origin to destination.

Interconnection agreements stitch these networks together. These arms’ length transactions define the terms by which networks exchange traffic with ...


The Case Against Third-Party Funding In Investment Arbitration, Frank J. Garcia Jul 2018

The Case Against Third-Party Funding In Investment Arbitration, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Healthcare Promises For Public Employees, Natalya Shnitser Jul 2018

Healthcare Promises For Public Employees, Natalya Shnitser

Boston College Law School Faculty Papers

State and local governments have promised nearly $1 trillion in retiree healthcare benefits to public employees. Although retiree healthcare benefits represent a form of compensation, historically, state and local governments have not set aside any money to pay for the promised benefits. Compensating employees with promises of future benefits has enabled state legislatures to use public dollars for other priorities, while ignoring the growing liabilities associated with the healthcare promises. As these liabilities have come due, they have strained state and local budgets. Some public employers have simply cut the benefits, and public employees have had limited recourse to hold ...