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What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo Dec 2014

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo

Boston College Law School Faculty Papers

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension ...


The Constructive Role Of Confusion In Trademark, Alfred C. Yen Dec 2014

The Constructive Role Of Confusion In Trademark, Alfred C. Yen

Boston College Law School Faculty Papers

This Article argues that consumer confusion plays a pervasive and important role in our trademark system. This argument directly challenges well-established orthodoxy. Numerous Supreme Court opinions and leading academics take the position that trademark law exists to reduce consumer confusion as much as possible. Indeed, courts generally justify aggressive creation and enforcement of trademark rights on the ground that these rights reduce consumer confusion or its economic equivalent, consumer search costs. Unfortunately, this construction of trademark law rests on a fundamental misunderstanding about how consumer confusion, the trademark system, and the operation of markets relate to one another. In particular ...


Book Review: Minds, Brains, And The Law: The Conceptual Foundations Of Law And Neuroscience, Karen Breda Dec 2014

Book Review: Minds, Brains, And The Law: The Conceptual Foundations Of Law And Neuroscience, Karen Breda

Boston College Law School Faculty Papers

Review of Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience by Michael S. Pardo and Dennis Patterson, published by Oxford University Press.


Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel A. Lyons Dec 2014

Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel A. Lyons

Boston College Law School Faculty Papers

The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the ...


Famigration (Fam Imm): The Next Frontier In Immigration Law, Kari E. Hong Oct 2014

Famigration (Fam Imm): The Next Frontier In Immigration Law, Kari E. Hong

Boston College Law School Faculty Papers

The recently published article, Immigration’s Family Values by Professor Kerry Abrams and R. Kent Piacenti, and the forthcoming Removing Citizens: Parenthood, Citizenship, and Immigration Courts by Kari Hong examine how, when, and why immigration law uses a different definition of family than the one used in state courts. Despite their differences, in conversation, these two pieces highlight how the Department of Homeland Security likely is either following misguided policies or pursuing improper objectives when creating a federal family law. Crimmigration (Crim Imm) scholarship successfully identified the ways in which the (purported) civil proceedings of immigration law needed the extra ...


Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater Oct 2014

Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Probably more than any other person most of us will ever have the opportunity of knowing, Joe Sax was kaleidoscopic in the way he projected his mind and lived his life as a scholar, teacher, and citizen seer. Shifting his analytical gaze from challenging context to challenging context, he repeatedly threw rich new patterns of perceptive light, thoughts broad and deep, onto a remarkable range of puzzles. Joe’s ability to think broadly and deeply influenced and reshaped the way that his students, friends, colleagues, and readers understood the intricacies, beauty, and challenges of the world around them. Others in ...


Paying For Altruism: The Case Of Organ Donation Revisited, Firat Bilgel, Brian D. Galle Sep 2014

Paying For Altruism: The Case Of Organ Donation Revisited, Firat Bilgel, Brian D. Galle

Boston College Law School Faculty Papers

Although many commentators have called for increased efforts to incentivize organ donations, theorists and some evidence suggest these efforts will be ineffective or even could perversely crowd out altruistic efforts. Prior papers examining the impact of tax incentives for donations generally report zero or negative coefficients. We argue these studies incorrectly define their tax variables, and rely on difference-in-differences methods despite likely failures of the requisite parallel trends assumption. We therefore aim to identify the causal effect of tax incentive legislation to serve as an organ donor on living related and unrelated kidney donation rates in the U.S states ...


Transparency And Disclosure, Diane M. Ring Sep 2014

Transparency And Disclosure, Diane M. Ring

Boston College Law School Faculty Papers

This chapter looks at current and proposed regimes regarding transparency and disclosure (i.e. the means by which countries gather information regarding taxpayer activity). Recent attention focused on the broad problem of base erosion and profit shifting has taken place at the OECD. This chapter addresses these issues from a developing country perspective.


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones Aug 2014

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones

Boston College Law School Faculty Papers

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


Reconstructing Constitutional Punishment, Paulo D. Barrozo Jul 2014

Reconstructing Constitutional Punishment, Paulo D. Barrozo

Boston College Law School Faculty Papers

Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


Compelled Disclosure Of Internet Interconnection Agreements Creates Anticompetitive Risks, Daniel A. Lyons Jun 2014

Compelled Disclosure Of Internet Interconnection Agreements Creates Anticompetitive Risks, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring Jun 2014

The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

This article begins to explore the legal and policy implications of a new form of financing -- income sharing agreements -- which have raised concerns that the effectively created "equity" in humans.


New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder May 2014

New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder

Boston College Law School Faculty Papers

These brief comments were presented in May 2014 at a panel in honor of the late Professor Pauline Maier (including Mary Beth Norton, Gordon Wood, Bernard Bailyn, Robert Martello, and Mary Sarah Bilder). Professor Bilder proposed three areas for future work in the framing era: (1) reconsidering the conception of the “state”; (2) exploring continuities in governance practices as well as formal constitutional change to explain the rapid embrace of the new constitutional system; (3) relocating American development within a larger global narrative in which 1776 or 1787 do not begin or end the story, and the thirteen colonies are ...


American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young May 2014

American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young

Boston College Law School Faculty Papers

The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted.

After rejecting ...


A Tale Of Two Countries: Comparing The Law Of Inheritance In Two Seemingly Opposite Systems, Ray D. Madoff May 2014

A Tale Of Two Countries: Comparing The Law Of Inheritance In Two Seemingly Opposite Systems, Ray D. Madoff

Boston College Law School Faculty Papers

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate ...


The Influence Of Experts, Diane M. Ring Apr 2014

The Influence Of Experts, Diane M. Ring

Boston College Law School Faculty Papers

No abstract provided.


Tax, Command...Or Nudge? Evaluating The New Regulation, Brian D. Galle Apr 2014

Tax, Command...Or Nudge? Evaluating The New Regulation, Brian D. Galle

Boston College Law School Faculty Papers

This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally-inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation. Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match the revenues and informational benefits taxes can provide. Similarly, writers in the law and economics tradition argue that fines are generally superior to non-pecuniary punishments. Drawing on prior work in the choice-of-instruments literature, and contrary to this popular wisdom, I show that nudges may out-perform fines, other Pigouvian taxes, or ...


Does Federal Spending 'Coerce' States? Evidence From State Budgets, Brian D. Galle Apr 2014

Does Federal Spending 'Coerce' States? Evidence From State Budgets, Brian D. Galle

Boston College Law School Faculty Papers

According to a recent plurality of the U.S. Supreme Court, the danger that federal taxes will “crowd out” state revenues justifies aggressive judicial limits on the conditions attached to federal spending. Economic theory offers a number of reasons to believe the opposite: federal revenue increases may also float state boats. To test these competing claims, I examine for the first time the relationship between total federal revenues and state revenues. I find that, contra the NFIB plurality, increases in federal revenue -- controlling, of course, for economic performance and other factors -- are associated with a large and statistically significant increase ...


Human-Centered Environmental Values Versus Nature-Centric Environmental Values: Is This The Question?, Zygmunt J.B. Plater Apr 2014

Human-Centered Environmental Values Versus Nature-Centric Environmental Values: Is This The Question?, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The challenging background context for much of the discussion and cogitation in the panels and pages of this conference is the unfortunate fact that environmental protection law in virtually all its manifestations is currently faring rather poorly in the public policy arenas of national government. From the public health hazards of residual substances in consumer goods and human breast milk to the mighty troubles of human-caused climate disruption, many of the most significant structures of societal governance are locked in political and financial dysfunctions and impasses. Given the conference’s goal to “explore more deeply the relationship between environmental protection ...


Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, And The Courts, George D. Brown Apr 2014

Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, And The Courts, George D. Brown

Boston College Law School Faculty Papers

There is considerable uncertainty surrounding the law and policy of federal sentencing. This uncertainty can be traced to United States v. Booker, in which the Supreme Court struck down the existing system of mandatory Federal Sentencing Guidelines, but preserved them as “advisory.” Federal courts at all three levels have since struggled with the legal status of the Guidelines and how to apply them. The Court’s recent decision in Peugh v. United States seems to treat the Guidelines as true “law.”

This uncertainty has serious consequences for the “War on Terror.” The Article III courts are the principal forum in ...


A Dead Link Or A Final Resting Place: Link Rot In Legal Citations, Nick Szydlowski Apr 2014

A Dead Link Or A Final Resting Place: Link Rot In Legal Citations, Nick Szydlowski

Boston College Law School Faculty Papers

A webpage’s URL is often referred to as its address, but frequently it is more like a short-term sublet than a permanent home. This article discusses the problem of link rot in legal citations and advocates for law reviews to adopt DOIs and Perma as complementary solutions.


Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield Mar 2014

Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield

Boston College Law School Faculty Papers

Amicus brief filed by Nancy Gertner and Kent Greenfield in the case of Louisiana Municipal Police Employees' Retirement System v. The Hershey Company, C.A. No. 7996-ML.


Revitalizing The Estate Tax: 5 Easy Pieces, James R. Repetti, Paul L. Caron Mar 2014

Revitalizing The Estate Tax: 5 Easy Pieces, James R. Repetti, Paul L. Caron

Boston College Law School Faculty Papers

In a previous article, we argued that contrary to the state of the law over 35 years ago — when George Cooper wrote his seminal article on the estate tax (A Voluntary Tax? New Perspectives on Sophisticated Estate Tax Avoidance, 77 Colum. L. Rev. 161 (1977))—taxpayers today generally ‘‘can reduce the value of assets subject to transfer tax in many instances only if they are willing to assume the risk that the reduction may be economically real and reduce the actual value of assets transferred to heirs or, alternatively, in narrow situations if they are willing to incur some tax ...


Peering Into The Comcast-Netflix Deal, Daniel A. Lyons Mar 2014

Peering Into The Comcast-Netflix Deal, Daniel A. Lyons

Boston College Law School Faculty Papers

No abstract provided.


Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler Mar 2014

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Boston College Law School Faculty Papers

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.


Leaker Traitor Whistleblower Spy: National Security Leaks And The First Amendment, Mary-Rose Papandrea Mar 2014

Leaker Traitor Whistleblower Spy: National Security Leaks And The First Amendment, Mary-Rose Papandrea

Boston College Law School Faculty Papers

The article discusses traitors, national security leaks in the U.S., the First Amendment to the nation's Constitution as of March 32014, focusing on the U.S. Espionage Act and criminal penalties for constitutional treason. The alleged whistleblowers Bradley Manning and Edward Snowden are mentioned, along with prosecutions for criminal security leaks in America. Immunity is examined in relation to U.S. government employees and independent contractors. Freedom of speech rights are also assessed.


Comments On Guidance For Tax-Exempt Social Welfare Organizations On Candidate-Related Political Activities, Brian D. Galle, Donald B. Tobin Feb 2014

Comments On Guidance For Tax-Exempt Social Welfare Organizations On Candidate-Related Political Activities, Brian D. Galle, Donald B. Tobin

Boston College Law School Faculty Papers

The Notice is a good first step. It creates bright-line standards that are easy to apply and that will eliminate much of the gray area regarding permissible political activity. Clearer lines will reduce the discretion on the part of the IRS. By decreasing the IRS’s discretion, the regulation will reduce the opportunity for the IRS to be used as a political tool in an Administration’s tool box.

However, the Notice does not go far enough. Congress has established a regulatory regime that has as its central purpose the disclosure of any significant campaign contributions by individuals or firms ...


The Home Mortgage Foreclosure Crisis: Lessons Learned, Patricia A. Mccoy Jan 2014

The Home Mortgage Foreclosure Crisis: Lessons Learned, Patricia A. Mccoy

Boston College Law School Faculty Papers

From 2007 through 2011, the United States housing market suffered a severe imbalance in supply and demand due to an excessive number both of foreclosed homes and homes awaiting foreclosure in the shadow housing inventory. Foreclosure prevention can help reduce the shadow housing inventory by keeping troubled mortgages from entering that inventory to begin with. The loan modification experience post-2008 yielded four main lessons about the best way to optimize foreclosure prevention. First, servicers should design loan modifications to lower monthly payments, including through principal reduction whenever appropriate. Second, servicers should evaluate loss mitigation as soon as possible following delinquency ...


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones Jan 2014

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones

Boston College Law School Faculty Papers

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


Appeals To The Privy Council From The American Colonies: An Annotated Digital Catalogue: Part 1, Sharon Hamby O'Connor, Mary Sarah Bilder Jan 2014

Appeals To The Privy Council From The American Colonies: An Annotated Digital Catalogue: Part 1, Sharon Hamby O'Connor, Mary Sarah Bilder

Boston College Law School Faculty Papers

Archived content from an interactive project available at http://amesfoundation.law.harvard.edu/ColonialAppeals/.