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Full-Text Articles in Law

"Just Like Little Dogs": The Law Should Speak With Veracity And Respect, Scott T. Fitzgibbon Dec 2009

"Just Like Little Dogs": The Law Should Speak With Veracity And Respect, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

This article proposes veracity and respect as basic guides for law. It thus supplements dominant lines of thought which emphasize instrumentalist criteria such as promoting efficiency, maximizing utility, and deterring and remedying harm. This article proposes that it is a great good for a judge, a legislator, and all who speak as the law to exercise the virtue of veracity and to speak with respect, and that it is especially bad in the case of such legal officers to depart from those practices. It points out some implications for family law.


A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen Dec 2009

A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen

Boston College Law School Faculty Papers

Third-party copyright liability raises specific First Amendment problems that remain relatively unexplored. Among other things, such liability separates the danger of liability from the benefits of speaking, making key actors prone to careless censorship of speech. This Article applies the First Amendment to third-party copyright liability by drawing lessons from the famous cases of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. It concludes that vicarious liability should be sharply curtailed, and that the application of presumed damages is constitutionally problematic in many contributory liability cases.


Reforming The Legal Profession Through Faith-Based Service Learning For Law Students: Notre Dame's 'Just Communities' Project, Vincent D. Rougeau Nov 2009

Reforming The Legal Profession Through Faith-Based Service Learning For Law Students: Notre Dame's 'Just Communities' Project, Vincent D. Rougeau

Boston College Law School Faculty Papers

Major curricular reform is long overdue at many American law schools, and the current economic crisis presents a unique opportunity for change. This article argues for a greater emphasis on service learning in the law school curriculum so that students can acquire a wider range of practical skills essential to lawyers and gain a deeper sense of engagement with issues of justice. At Notre Dame’s London Law Centre, the “Just Communities” project offers a compelling example of how this can be accomplished. Through participation in faith-based community organizing, law students not only gain valuable skills essential to the lawyer ...


Legitimacy And Corporate Law: The Case For Regulatory Redundancy, Renee M. Jones Aug 2009

Legitimacy And Corporate Law: The Case For Regulatory Redundancy, Renee M. Jones

Boston College Law School Faculty Papers

This article provides a democratic assessment of the corporate law making structure in the United States. It draws upon the basic democratic principle that those affected by legal rules should have a voice in determining the substance of those rules. Although other commentators have noted certain undemocratic aspects of corporate law, this Article is the first to present a comprehensive assessment of the corporate regulatory structure from the perspective of democracy. It departs from prior accounts by looking past the states' role to consider the ways that federal regulation shores up the legitimacy of the overarching structure. This focus on ...


Conscience And Citizenship: The Primacy Of Conscience For Catholics In Public Life, Gregory A. Kalscheur S.J. Aug 2009

Conscience And Citizenship: The Primacy Of Conscience For Catholics In Public Life, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

In their statement, Forming Consciences for Faithful Citizenship, the U.S. Catholic bishops acknowledge that “the responsibility to make choices in political life rests with each individual in the light of a properly formed conscience.” This essay argues that, in light of this responsibility, it is important to affirm a commitment to the primacy of conscience as that idea has been understood in the Catholic tradition. If we really expect voters and public officials to make responsible, conscientious decisions about matters of public policy, we should not speak in ways that suggest that the proper formation of conscience is simply ...


Massachusetts Health Passport Project Evaluation Final Report, Francine Jacobs, Rachel Oliveri, Jessica Greenstone, Claudia Miranda-Julian Jul 2009

Massachusetts Health Passport Project Evaluation Final Report, Francine Jacobs, Rachel Oliveri, Jessica Greenstone, Claudia Miranda-Julian

Boston College Law School Faculty Papers

Adapted from the Executive Summary:

The Massachusetts Health Passport Project (MHPP) began in April 2004, as a pilot program of the Juvenile Rights Advocacy Project at Boston College Law School under the direction of Francine Sherman, Esq. The program was originally called the Girls’ Health Passport Project (GHPP) and was designed to address the unmet health needs and gaps in health care services for girls committed to the Massachusetts Department of Youth Services (DYS) and re-entering their communities from DYS assessment and treatment facilities. An advisory board of health, juvenile justice, philanthropy, and evaluation professionals assisted the program in its ...


Shadow Lawyering: Nonlawyer Practice Within Law Firms, Paul R. Tremblay Jun 2009

Shadow Lawyering: Nonlawyer Practice Within Law Firms, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers commonly associate with nonlawyers to assist in their performance of their lawyering tasks. A lawyer cannot know with confidence, though, whether the delegation of some tasks to a nonlawyer colleague might result in her assisting in the unauthorized practice of law, because the state of the law and the commentary about nonlawyer practice is so confused and incoherent. Some respected authority within the profession tells the lawyer that she may only delegate preparatory matters and must prohibit the nonlawyer from discussing legal matters with clients, or negotiating on behalf of clients. Other authority suggests that the lawyer may delegate ...


How Public Is Private Philanthropy?, Ray D. Madoff Jun 2009

How Public Is Private Philanthropy?, Ray D. Madoff

Boston College Law School Faculty Papers

No abstract provided.


The Estate Tax Non-Gap: Why Repeal A "Voluntary Tax?, Paul L. Caron, James R. Repetti Jun 2009

The Estate Tax Non-Gap: Why Repeal A "Voluntary Tax?, Paul L. Caron, James R. Repetti

Boston College Law School Faculty Papers

This Article challenges the conventional wisdom that the estate tax is easily circumvented.


Torts And The Construction Of Inducement And Contributory Liability In Amazon And Visa, Alfred C. Yen May 2009

Torts And The Construction Of Inducement And Contributory Liability In Amazon And Visa, Alfred C. Yen

Boston College Law School Faculty Papers

In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court clearly expressed its understanding that the common law of tort provides the foundation for third party copyright liability. Grokster did not, however, offer a complete account of how tort law defines guides the application of third party copyright liability. Accordingly, lower courts now face the challenges of filling in the details that Grokster left out. This Article examines two recent, closely followed opinions that apply tort law to the problem of third party copyright liability, Perfect 10 v. Amazon and Perfect 10 v. Visa. It makes sense to study Amazon ...


A Comment On "Legisprudence", Vlad F. Perju May 2009

A Comment On "Legisprudence", Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


Securitization And Systemic Risk Amid Deregulation And Regulatory Failure, Patricia A. Mccoy, Andrey D. Pavlov, Susan M. Wachter May 2009

Securitization And Systemic Risk Amid Deregulation And Regulatory Failure, Patricia A. Mccoy, Andrey D. Pavlov, Susan M. Wachter

Boston College Law School Faculty Papers

During the recent housing boom, private-label securitization without regulation was unsustainable. Without regulation, securitization allowed mortgage industry actors to gain fees and to put off risks. The ability to pass off risk allowed lenders and securitizers to compete for market share by lowering their lending standards, which activated more borrowing. Lenders who did not join in the easing of lending standards were crowded out of the market. Meanwhile, the mortgages underlying securities became more exposed to growing default risk, but investors did not receive higher rates of return. Artificially low risk premia caused the asset price of houses to go ...


The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn Apr 2009

The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn

Boston College Law School Faculty Papers

This Article analyzes the Financial Crisis of 2008 in the context of failures by market participants to engage in private ordering thus leading to opportunistic behavior at the expense of market stability. The Financial Crisis of 2008 offers a decidedly negative verdict on a decades-long project to deregulate financial markets and rely on private ordering mechanisms, including securitization and default swaps, to mitigate opportunistic behavior and improve market efficiency. Although the regulatory approach of the past two decades, which relied in great measure on private parties fending for themselves, helped to generate a number of innovations and positive developments in ...


Hello Blaw: Bloomberg Law, The Newcomer In Legal Research, Meets Academic Users, Mary Ann Neary, George D. Wilson Mar 2009

Hello Blaw: Bloomberg Law, The Newcomer In Legal Research, Meets Academic Users, Mary Ann Neary, George D. Wilson

Boston College Law School Faculty Papers

There’s a new legal information provider in town. Bloomberg, a widely-known provider of business and financial data and news, has been working the past several years to create and disseminate its Bloomberg Law (BLAW) suite of services to law firms as well as to a number of law school libraries.


Border Searches In The Age Of Terrorism, Robert M. Bloom Feb 2009

Border Searches In The Age Of Terrorism, Robert M. Bloom

Boston College Law School Faculty Papers

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns ...


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 ...


The International Organization For Standardization: Private Voluntary Standards As Swords And Shields, David A. Wirth Feb 2009

The International Organization For Standardization: Private Voluntary Standards As Swords And Shields, David A. Wirth

Boston College Law School Faculty Papers

Private voluntary standards such as the International Organization for Standardization's (ISO's) 14000 series have played an increasingly important role in encouraging corporations to adopt more sustainable business models on their own initiative and not in direct response to governmentally mandated requirements. ISO standards have a number of benefits, including promoting international uniformity; elevating environmental issues within an enterprise; promoting international trade; and providing a minimal level of environmental performance in countries with less than adequate regulatory infrastructure. Concerns about ISO standards include the relationship to public regulation; and ISO 14001's essentially procedural, as opposed to performance-based, character ...


Democracy, Sovereignty And Tax Competition: The Role Of Tax Sovereignty In Shaping Tax Cooperation, Diane M. Ring Jan 2009

Democracy, Sovereignty And Tax Competition: The Role Of Tax Sovereignty In Shaping Tax Cooperation, Diane M. Ring

Boston College Law School Faculty Papers

This paper considers the question of how sovereignty shapes arguments over the merits of tax competition and how sovereignty influences the design of responses to tax competition. Part I provides a basic overview of sovereignty concepts, in particular their relevance to a nation-state desirous of control over tax policy. Part II defines tax competition, identifies the different kinds of states involved, reviews the emergence of the OECD project to limit harmful tax competition, and traces the EU experience with tax competition. Part III explores the normative grounds for challenging tax competition and the role of sovereignty in shaping and limiting ...


A Methodology For Mentoring Writing In Law Practice: Using Textual Clues To Provide Effective And Efficient Feedback, Jane Kent Gionfriddo, Daniel Barnett, E. Joan Blum Jan 2009

A Methodology For Mentoring Writing In Law Practice: Using Textual Clues To Provide Effective And Efficient Feedback, Jane Kent Gionfriddo, Daniel Barnett, E. Joan Blum

Boston College Law School Faculty Papers

Becoming a successful legal writer is a process that begins in law school and continues intensively during the beginning years of a lawyer's career. Throughout this process, in both contexts, a writer benefits enormously from feedback on his analysis, and how that analysis is conveyed, from those more experienced. Much has been written about how legal educators should respond to student written work, yet little addresses the role that supervising attorneys can play in mentoring the writing of less experienced colleagues. This article therefore proposes a methodology to help supervisor-mentors provide, in an efficient manner, effective feedback on junior ...


Reason And Authority In The European Court Of Justice, Vlad F. Perju Jan 2009

Reason And Authority In The European Court Of Justice, Vlad F. Perju

Boston College Law School Faculty Papers

This Article makes the case for a discursive turn in European law. Contrary to the prevailing view, politicizing the judicial discourse of the European Court of Justice would strengthen, more than undermine, the Court's authority. This argument is made with reference to the ECJ's reason giving practice, specifically to the relation between the form and content of its decisions. Allowing its members to write separate opinions will enable the Court to redefine its role on the European institutional and political stages The Article then answers doctrinal, institutional and juriscultural objections to its central thesis.


Public Use, Public Choice And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons Jan 2009

Public Use, Public Choice And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons

Boston College Law School Faculty Papers

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations ...


Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper Jan 2009

Specific Intent And The Purposeful Narrowing Of Victim Protection Under The Convention Against Torture, Mary Holper

Boston College Law School Faculty Papers

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent ...


Hidden Taxes, Brian D. Galle Jan 2009

Hidden Taxes, Brian D. Galle

Boston College Law School Faculty Papers

The idea of hidden taxes is as old as John Stuart Mill, but convincing evidence of their existence is new. In this Article, I survey and critique recent studies that claim to show that there are some taxes that can go unnoticed by those who pay them. I also develop the array of unanswered theoretical questions and policy implications that potentially follow from the studies' results.

Probably the central question for hidden taxes is whether they might enable government to raise revenue without also distorting the economy. If so, I argue, they have the potential to radically refashion the architecture ...


Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau Jan 2009

Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau

Boston College Law School Faculty Papers

In this essay, I will consider how law, religion, and democratic pluralism revolve around a particular issue: global migration. I use the term "global migration" to encompass a number of related issues that are often collapsed under the term "immigration." In nations that have constructed their identities around waves of settlers or migrants-places like the United States, Canada, Australia, and New Zealand-immigration involves the formal reception of foreigners into the host country as potential new citizens.' This is just one part of the migration of peoples around the globe. Migration also encompasses emigration, asylum, economic migration, and undocumented or irregular ...


Prophetic Discourse In The Public Square, M. Cathleen Kaveny Jan 2009

Prophetic Discourse In The Public Square, M. Cathleen Kaveny

Boston College Law School Faculty Papers

No abstract provided.


Freedom, Want, And Economic And Social Rights: Frame And Law, Katharine G. Young Jan 2009

Freedom, Want, And Economic And Social Rights: Frame And Law, Katharine G. Young

Boston College Law School Faculty Papers

In 1948, the Universal Declaration of Human Rights recognized the aspiration for everyone to enjoy freedom from want and particular economic and social rights. Sixty years after the proclamation of the Universal Declaration, it is important to review its meaning and its effects in the context of significantly different legal, political, economic and cultural landscapes. To approach this task, this article employs the unusual device of considering a Norman Rockwell painting of Freedom from Want. This painting, well-known in the United States, responded to the local wartime political culture, and depicted the private enjoyment of material security in patriarchal, consumerist ...


International Trade Law: Cli Background Paper No. 10, David A. Wirth Jan 2009

International Trade Law: Cli Background Paper No. 10, David A. Wirth

Boston College Law School Faculty Papers

No abstract provided.


Make Trade Rules Attuned To The Ecological Needs And Interests Of Future Generations: Cli Recommendation No. 15, David A. Wirth Jan 2009

Make Trade Rules Attuned To The Ecological Needs And Interests Of Future Generations: Cli Recommendation No. 15, David A. Wirth

Boston College Law School Faculty Papers

This recommendation observes that international trade agreements as currently structured do not establish minimum standards so as to protect the climate for present and future generations. Accordingly, it advocates potential strategies that could be employed in future rounds of international trade negotiations to mobilize the international trade regime in the pursuit of climate-friendly policies. These strategies include, among others, the elimination of climate-degrading subsidies, the liberalization of trade in climate-friendly goods and services, and the promotion of climate-friendly investments (particularly in the energy sector). In addition, the recommendation proposes a modification in trade rules to account for the greenhouse-gas intensity ...


The Fusion Of Presidentialism And Parliamentarism, Richard Albert Jan 2009

The Fusion Of Presidentialism And Parliamentarism, Richard Albert

Boston College Law School Faculty Papers

Parliamentarism and presidentialism are commonly, and correctly, set in opposition as distinguishable systems of governance that exhibit distinguishable structural features. Yet the structural differences between them do not necessarily give rise to functional differences. Quite the contrary, the very structural features that allow us to distinguish between presidentialism and parliamentarism often conceal their functional similarities. In this Article, I demonstrate that conventional accounts of presidentialism and parliamentarism: (1) do not fully reflect how each system actually operates; and (2) obscure the substantial similarities between parliamentary and presidential systems.


An Iconic Social Activist, Mark S. Brodin Jan 2009

An Iconic Social Activist, Mark S. Brodin

Boston College Law School Faculty Papers

No abstract provided.