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Full-Text Articles in Law

Introduction, Comparative Income Taxation: A Structured Analysis, Hugh J. Ault, Brian J. Arnold Nov 2004

Introduction, Comparative Income Taxation: A Structured Analysis, Hugh J. Ault, Brian J. Arnold

Boston College Law School Faculty Papers

This work presents a comparative analysis of some of the structural and design issues which are involved in mature income tax systems. Countries selected for the study are Australia, Canada, France, Germany, Japan, The Netherlands, Sweden, the United Kingdom and the United States. Each of the systems has evolved its own particular set of approaches and principles, outlined in Part One. Ensuing Parts deal with Basic Income Taxation, Taxation of Business Organizations and International Taxation. There is much to learn in the tax field from a comparative analysis of common problems. One need not believe in the existence of a ...


Democracy And The Dominance Of Delaware In Corporate Law, Kent Greenfield Nov 2004

Democracy And The Dominance Of Delaware In Corporate Law, Kent Greenfield

Boston College Law School Faculty Papers

Among the grandest debates within corporate law is whether the dominance of Delaware is the result of a “race to the bottom” -- toward a legal regime that benefits managers at the expense of the shareholders -- or a “race to the top” -- toward an efficient, shareholder-centric governance framework. This paper argues that this debate is largely beside the point. Even if Delaware’s dominance is the result of a competition resulting in law that efficiently serves the interests of shareholders, it is nevertheless illegitimate. This is because the internal affairs doctrine, on which Delaware’s preeminence depends, in effect allows corporations ...


Case Comment On F. Hoffman-Laroche Ltd. V. Empagran S.A. In 'The Supreme Court 2003 Term: Leading Cases. Iii Federal Statutes And Regulations: E. Foreign Trade Antitrust Improvement Act', Daniel A. Lyons Nov 2004

Case Comment On F. Hoffman-Laroche Ltd. V. Empagran S.A. In 'The Supreme Court 2003 Term: Leading Cases. Iii Federal Statutes And Regulations: E. Foreign Trade Antitrust Improvement Act', Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Property And Contract: Toward A Clearer Understanding Of The Hague Convention On The Law Applicable To Certain Rights In Respect Of Securities, James S. Rogers Oct 2004

Property And Contract: Toward A Clearer Understanding Of The Hague Convention On The Law Applicable To Certain Rights In Respect Of Securities, James S. Rogers

Boston College Law School Faculty Papers

No abstract provided.


Carte Blanche: Federal Prosecution Of State And Local Officials After Sabri, George D. Brown Oct 2004

Carte Blanche: Federal Prosecution Of State And Local Officials After Sabri, George D. Brown

Boston College Law School Faculty Papers

Federal prosecutions of state and local officials for political corruption are a significant feature of the American political landscape. However, they raise serious federalism questions, especially the potential impact on state autonomy and sovereignty. Thus, these prosecutions would seem to run counter to the Supreme Court’s “New Federalism.” The Court has never explored the issue in depth. Last term it handed down a decision highly favorable to the federal role in the case of Sabri v. United States. This paper examines Sabri, and questions the rationale that the prosecution in that case was an example of justifiable protection of ...


Ethics In Externships: Confidentiality, Conflicts, And Competence Issues In The Field And In The Classroom, Alexis Anderson, Arlene Kanter, Cindy R. Slane Oct 2004

Ethics In Externships: Confidentiality, Conflicts, And Competence Issues In The Field And In The Classroom, Alexis Anderson, Arlene Kanter, Cindy R. Slane

Boston College Law School Faculty Papers

Law school faculty engaged in externship teaching have long recognized that the tripartite nature of externship practice, which joins law students, field supervisors, and faculty supervisors in the common enterprise of providing students with opportunities to observe, participate in, and reflect on the work that lawyers do in various practice settings, gives rise to ethical issues that are in some ways distinct from the ethical issues commonly encountered in in-house clinical settings. This article explores the challenges facing each of the externship players with respect to a number of such issues, all clustering around three central professional obligations lawyers owe ...


The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow Sep 2004

The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow

Boston College Law School Faculty Papers

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics ...


Intimacy And Injury: How Law Has Changed For Battered Women, Phyllis Goldfarb Sep 2004

Intimacy And Injury: How Law Has Changed For Battered Women, Phyllis Goldfarb

Boston College Law School Faculty Papers

In a book focused on the intersection of law and psychology in women's lives, this chapter reviews the evolving law of domestic violence, examining the features of the legal landscape that have changed in the past three decades for those who have experienced violence in intimate relationships. The chapter considers the legal development of interventions such as civil protection orders, civil lawsuits, mandatory arrest and no-drop prosecution policies, the conception of crimes such as restraining order violations and stalking, and the potential use of alternative forms of dispute resolution. Changes in the law of self-defense as applied to intimate ...


A Model Financial Statement Insurance Act, Lawrence A. Cunningham Sep 2004

A Model Financial Statement Insurance Act, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability, this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to ...


Review Of ""The Penalty Is Death:" U.S. Newspaper Coverage Of Women's Executions" By Marlin Shipman., Phyllis Goldfarb Aug 2004

Review Of ""The Penalty Is Death:" U.S. Newspaper Coverage Of Women's Executions" By Marlin Shipman., Phyllis Goldfarb

Boston College Law School Faculty Papers

No abstract provided.


Rhetoric, Public Reason And Bioethics: The President's Council On Bioethics And Human Cloning, M. Cathleen Kaveny Jul 2004

Rhetoric, Public Reason And Bioethics: The President's Council On Bioethics And Human Cloning, M. Cathleen Kaveny

Boston College Law School Faculty Papers

No abstract provided.


"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross Jun 2004

"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross

Boston College Law School Faculty Papers

Juries often use short-cuts to determine the character of the accused, such as their job, age, race, gender, marital status, or what the person looks like. These short-cuts often substitute for character evidence in courtrooms across the United States, adding to the divide in the criminal justice system today. This problem provides a lens to examine the character evidence rules and how they are implemented. Rules governing good and bad character evidence themselves have been turned on their head. A defendant’s right to put in good character has been called “deeply imbedded in our jurisprudence.” Nevertheless, the rules currently ...


The Basic Principle Of Loss Allocation For Unauthorized Checks, James S. Rogers Jun 2004

The Basic Principle Of Loss Allocation For Unauthorized Checks, James S. Rogers

Boston College Law School Faculty Papers

It is commonly thought that the Uniform Commercial Code adopts a negligence principle as the basis of loss allocation for the check system. This Article argues that this common assumption is wrong. Instead, the fundamental principle of the check system and all other payment systems is that the burden of unpreventable losses should rest with the providers of the payment system rather than with the users of the payment system. The Article shows that the old English case of Price v. Neal is not, as is commonly thought, an anomaly but is instead entirely consistent with the basic principle of ...


Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham Jun 2004

Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability. The financial statement insurance concept, pioneered by ...


John Paul Ii, John Courtney Murray, And The Relationship Between Civil Law And Moral Law: A Constructive Proposal For Contemporary American Pluralism, Gregory A. Kalscheur S.J. May 2004

John Paul Ii, John Courtney Murray, And The Relationship Between Civil Law And Moral Law: A Constructive Proposal For Contemporary American Pluralism, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

In his 1995 encyclical, Evangelium Vitae, Pope John Paul II outlined a jurisprudential vision which includes the “doctrine on the necessary conformity of civil law with moral law.” The Pope’s jurisprudential reflections prompt the question I consider in this Article: How should we understand the doctrine on the necessary conformity of civil law with moral law in a religiously pluralistic democratic society like that of the United States today? My objective is to articulate a vision of the relationship between moral values and civil law that is grounded in the tradition of Catholic social thought and that can allow ...


Regulatory Copyright, Joseph P. Liu Apr 2004

Regulatory Copyright, Joseph P. Liu

Boston College Law School Faculty Papers

This article explores and examines the implications of the increasingly regulatory nature of U.S. copyright law. For many years, U.S. copyright law operated under a judicially-administered, industry-neutral property rights regime. Congress set the scope of the property entitlement, leaving the courts to enforce the entitlement and the markets to organize the production of creative works in light of the entitlement structure. In recent years, however, Congress has shown an increasing willingness to intervene more directly in the structure of copyright markets. Congress's most recent legislative efforts are far more complex and industry-specific, allocate rights and responsibilities in ...


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 ...


Textualism And Tax Shelters, Noel B. Cunningham, James R. Repetti Apr 2004

Textualism And Tax Shelters, Noel B. Cunningham, James R. Repetti

Boston College Law School Faculty Papers

A substantial debate about the approaches employed by courts to interpret statutes and regulations has developed during the last decade. Some have argued that the search for a statute's meaning and purpose should focus on the text, itself, and should not include consulting legislative history. In contrast, others have argued that it is difficult to determine the meaning of a statute without consulting legislative history to determine the legislature's purpose for the statute. The debate about the appropriate method for interpreting statutes underlies a crisis in the administration of tax law. The recent proliferation of tax shelters has ...


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 ...


Dept. Of Labor Increases Union Financial Reporting Requirements, Daniel A. Lyons Mar 2004

Dept. Of Labor Increases Union Financial Reporting Requirements, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Zeal By All Means, But Only Within The Rules, Paul R. Tremblay, J. Charles Mokriski Mar 2004

Zeal By All Means, But Only Within The Rules, Paul R. Tremblay, J. Charles Mokriski

Boston College Law School Faculty Papers

No abstract provided.


"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette Mar 2004

"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette

Boston College Law School Faculty Papers

Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and ...


The Twentieth Century, Daniel R. Coquillette Mar 2004

The Twentieth Century, Daniel R. Coquillette

Boston College Law School Faculty Papers

All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training—and those events that we have actually witnessed—we allegedly lose that "objectivity" which makes the "science" of history itself possible. Certainly, there is no point in burdening the reader with the "original" materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an "historical perspective."


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 ...


Judicial Attitudes Toward Confronting Attorney Misconduct: A View From The Reported Decisions, Judith A. Mcmorrow, Jackie Gardina, Salvatore Ricciardone Jan 2004

Judicial Attitudes Toward Confronting Attorney Misconduct: A View From The Reported Decisions, Judith A. Mcmorrow, Jackie Gardina, Salvatore Ricciardone

Boston College Law School Faculty Papers

Over the last 20 years, a rich body of literature has emerged to describe the increasingly complex system of lawyer regulation in the United States. This article studies the available data from the Code of Judicial Conduct and federal and state court opinions to glean a richer understanding of how judges construct their individual and institutional role in this web of attorney regulation. The picture that emerges from the reported decisions in both state and federal court is a desire to maintain the integrity of the judicial process and a concern for the efficiency and fairness in the proceeding before ...


Why Happiness?: A Commentary On Griffith's Progressive Taxation And Happiness, Diane M. Ring Jan 2004

Why Happiness?: A Commentary On Griffith's Progressive Taxation And Happiness, Diane M. Ring

Boston College Law School Faculty Papers

This Commentary examines three issues raised in Professor Thomas D. Griffith’s Article on the connection between progressive taxation and subjective well-being, focusing on the selection of happiness as the measure of the gains of redistribution, the ability to measure happiness or subjective well-being, and the implications of using happiness analysis in determining tax policy. After arguing that the progressive taxation debate would benefit from further exploration of why happiness is the appropriate measure of success, this Commentary raises concerns about relying on self-reporting of subjective well-being and how happiness studies should be interpreted and can be improved. Finally, this ...


Rethinking Corporate Federalism In The Era Of Corporate Reform, Renee M. Jones Jan 2004

Rethinking Corporate Federalism In The Era Of Corporate Reform, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.


Stories From Immigration Practice, Daniel Kanstroom Jan 2004

Stories From Immigration Practice, Daniel Kanstroom

Boston College Law School Faculty Papers

No abstract provided.


The Apogee Of The Commodity, Anthony P. Farley Jan 2004

The Apogee Of The Commodity, Anthony P. Farley

Boston College Law School Faculty Papers

Slavery is death. The body of this death is white-over-black, white-over-black only, and that continually. The body of this death is eternal and therefore with us still. Slavery is white-over-black, segregation is white-over-black, neosegregation is white-over-black, and all of it is death. White-over-black is the death that it is the slave’s calling to produce. The slave produces this death through its juridical prayers for equality of right. The slave perfects its own slavery in this manner. Rights cannot be equal. There are always ambiguities. The ambiguities are always available for a white-over-black reading. The fact of white-over-black, of the ...


Beyond Special And Differential Treatment, Frank J. Garcia Jan 2004

Beyond Special And Differential Treatment, Frank J. Garcia

Boston College Law School Faculty Papers

Developing country concern over awed special and differential treatment (S&D) provisions has already contributed to the failed Seattle and Cancún WTO Ministerial Meetings. In order to succeed, the current WTO Doha Development Round must go beyond simply reforming existing S&D provisions, important as that is. Developing countries must re-focus WTO trade and development policy around the twin goals of development and fairness. Developing countries need a comprehensive agreement on S&D clarifying that development, not trade liberalization, is the number one economic policy goal of developing countries, and that fairness, not charity, is the basis for development. Such an agreement should also establish adequate domestic policy space for minimally-distorting development policies; create binding and unconditional preferential market access; provide adequate time to implement complex new trade agreements; create truly “precise, effective and operational” S&D provisions; and adequately fund technical assistance.