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Applying Citizens United To Ordinary Corruption, George D. Brown Mar 2015

Applying Citizens United To Ordinary Corruption, George D. Brown

Boston College Law School Faculty Papers

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ...


Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju Jan 2010

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Boston College Law School Faculty Papers

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order ...


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.


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.


Student Speech Rights In The Digital Age, Mary-Rose Papandrea Oct 2008

Student Speech Rights In The Digital Age, Mary-Rose Papandrea

Boston College Law School Faculty Papers

For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context – the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a ...


Colonial Constitutionalism And Constitutional Law, Mary Sarah Bilder Sep 2008

Colonial Constitutionalism And Constitutional Law, Mary Sarah Bilder

Boston College Law School Faculty Papers

This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print ...


Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer Jun 2008

Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer

Boston College Law School Faculty Papers

It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with ...


Idea Or Practice: A Brief Historiography Of Judicial Review, Mary Sarah Bilder May 2008

Idea Or Practice: A Brief Historiography Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.


Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J. Mar 2008

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper ...


Lapdogs, Watchdogs, And Scapegoats: The Press And National Security Information, Mary-Rose Papandrea Feb 2008

Lapdogs, Watchdogs, And Scapegoats: The Press And National Security Information, Mary-Rose Papandrea

Boston College Law School Faculty Papers

In the United States, the Executive branch possesses virtually unbridled classification authority to keep information from the public. Although the Freedom of Information Act and whistleblower protection laws serve as some check on the Executive’s power over national security information, these tools remain largely ineffectual. Because the desire for tight information control competes with the demands of newsgathering, a “game of leaks” has developed among government officials and reporters in which the press alternatively serves as lapdogs, watchdogs, and scapegoats for the Executive branch. This Article demonstrates that the government has been communicating information to the public through leaks ...


Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey Nov 2007

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Boston College Law School Faculty Papers

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must ...


Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown Oct 2007

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

Boston College Law School Faculty Papers

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal ...


Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J. Jun 2007

Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to ...


Why We Have Judicial Review, Mary Sarah Bilder Apr 2007

Why We Have Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This paper accompanies Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006), in which the author argues that the origins of judicial review lie not in the expansion of judicial power but rather in the prior practice of commitment to limited legislative authority.


Pedagogy Of The Suppressed: A Class On Race And The Death Penalty, Phyllis Goldfarb Mar 2007

Pedagogy Of The Suppressed: A Class On Race And The Death Penalty, Phyllis Goldfarb

Boston College Law School Faculty Papers

What does it mean to contextualize legal doctrine and how does contextualization matter? This essay explores a general pedagogy of contextualization within the particular context of a class on race and the death penalty. Teaching the Supreme Court's infamous 1987 opinion in the case of McCleskey v. Kemp within its historical, doctrinal, cultural, and human contexts--rather than as a self-explanatory pronouncement--provides a deeper understanding of America's death penalty system, its connection to America's racial caste system, and the Supreme Court's role in each. These multiple contexts provide a foundation for comprehension and critique of values served ...


Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea Mar 2007

Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea

Boston College Law School Faculty Papers

The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who counts as a reporter entitled to invoke the privilege, its continued existence is in grave doubt. The accompanying Article argues that this hysteria is misplaced. The development of the internet as a new medium of communication in many ways poses the same kinds of challenges to the reporter’s privilege that courts and state legislatures have faced for decades as television reporters, radio commentators, book ...


The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn Feb 2007

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Boston College Law School Faculty Papers

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence ...


The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom Feb 2007

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Boston College Law School Faculty Papers

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that ...


Judicial Review: Fostering Judicial Independence And Rule Of Law, Daniel Garnaas-Holmes Jan 2007

Judicial Review: Fostering Judicial Independence And Rule Of Law, Daniel Garnaas-Holmes

Law and Justice in the Americas Working Paper Series

No abstract provided.


Modern Judicial Reform In El Salvador And Brazil, Dina Bernardelli Jan 2007

Modern Judicial Reform In El Salvador And Brazil, Dina Bernardelli

Law and Justice in the Americas Working Paper Series

A comparative assessment of the successes and failures of the judicial reform efforts of El Salvador and Brazil in the 1980’s produces striking results. The reforms varied greatly in scope and were conducted in very different socio-political and economic backgrounds. While El Salvador’s reforms seemed narrow and ill-planned, on paper it appeared that Brazil’s broad reforms would be a successful model for any country with a fledgling democracy. Brazil’s reforms were an exercise in constitutionalism, implementing genuine separation of powers and receiving legislative and executive support. I was very surprised that these different approaches produced strikingly ...


The Constitutional Imbalance, Richard Albert Jan 2007

The Constitutional Imbalance, Richard Albert

Boston College Law School Faculty Papers

The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power"--as the Federalist Papers famously predicted-- the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.

The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise ...


The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J. Nov 2006

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jun 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be ...


Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J. May 2006

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of ...


Religion In The New Republic, Richard Albert Jan 2006

Religion In The New Republic, Richard Albert

Boston College Law School Faculty Papers

Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine--incoherent though it may be--is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing ...


Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


Counterrevolution? -- National Criminal Law After Raich, George D. Brown Oct 2005

Counterrevolution? -- National Criminal Law After Raich, George D. Brown

Boston College Law School Faculty Papers

This article provides an in-depth analysis of the Supreme Court’s recent decision in Gonzales v. Raich. The Court rejected by a margin of 6-3 a Ninth Circuit holding that the federal Controlled Substances Act would probably be found unconstitutional as applied to intrastate users of marijuana who were in conformity with California’s Compassionate Use Act. Although the majority, and Justice Scalia concurring, found the case to present a relatively straightforward problem in the application of Commerce Clause doctrine, the three dissenters (Justice O’Connor, joined by Chief Justice Rehnquist, and Justice Thomas) sounded sharp notes decrying a betrayal ...


The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder Mar 2005

The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder

Boston College Law School Faculty Papers

Departing from traditional approaches to colonial legal history, Mary Sarah Bilder argues that American law and legal culture developed within the framework of an evolving, unwritten transatlantic constitution that lawyers, legislators, and litigants on both sides of the Atlantic understood. The central tenet of this constitution--that colonial laws and customs could not be repugnant to the laws of England but could diverge for local circumstances--shaped the legal development of the colonial world. Focusing on practices rather than doctrines, Bilder describes how the pragmatic and flexible conversation about this constitution shaped colonial law: the development of the legal profession; the place ...