Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 23 of 23

Full-Text Articles in Law

Langdell And The Invention Of Legal Doctrine, Catharine Wells Nov 2009

Langdell And The Invention Of Legal Doctrine, Catharine Wells

University of Southern California Legal Studies Working Paper Series

This paper addresses two related questions.

The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts ...


Five Decades Of Family Law, Sanford N. Katz Jan 2008

Five Decades Of Family Law, Sanford N. Katz

Boston College Law School Faculty Papers

No abstract provided.


Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz Jul 2007

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper ...


Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers Apr 2007

Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers

Boston College Law School Faculty Papers

The law of restitution has been the forgotten step-child of American private law for many decades. The American Law Institute’s current project to produce a new restatement of the law of restitution holds the promise of bringing the subject to the foreground and removing some of the confusion that many lawyers and judges feel in approaching the topic. One of the important issues that must be addressed in any comprehensive treatment of the law of restitution is how to treat those areas where the possibility of recovery based on the unjust enrichment principle overlaps with recovery based on the ...


Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells Dec 2006

Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells

Boston College Law School Faculty Papers

This paper recounts a number of lessons learned in the course of serving as the Director of Public Charities for the Commonwealth of Massachusetts. It incorporates these lessons into a discussion of the proper analysis of charitable organizations. Should charities be analogized to for-profit firms or are they something that is essentially different? The paper argues that they lack many of the attributes of Coasian firms and that they should be considered as “consumption groups” that have different methods of accountability.


The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman Aug 2006

The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman

Boston College Law School Faculty Papers

In 1938, in NLRB v. Mackay Radio & Telegraph Co., the Supreme Court offered one of its earliest interpretations of the National Labor Relations Act. Although the Court’s holding provided that employers may not discriminate against employees for their union activity when the strike is over and workers are reinstated, dicta in the opinion also provided that under the NLRA employers enjoy an unrestricted right to replace strikers. In the 70 years since the Court’s announcement, scholars remain baffled by the contradictions presented by the “Mackay doctrine”—a rule that forbids employers from discharging legally protected strikers while, at ...


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 ...


Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham May 2006

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

Boston College Law School Faculty Papers

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML’s social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML’s advantages while minimizing risks, this Article envisions creating ...


Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay Sep 2005

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without ...


A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield Jun 2005

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Boston College Law School Faculty Papers

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that ...


Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki Mar 2005

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms ...


Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham Jan 2005

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by ...


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 ...


Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham Jan 2000

Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding ...


Entrepreneurs And The Estate Tax, James R. Repetti Jan 1999

Entrepreneurs And The Estate Tax, James R. Repetti

Boston College Law School Faculty Papers

This article analyzes the claims of a recent commentary by Douglas Holtz-Eakin, The Death Tax: Investments, Employment and Entrepreneurs, in 84 Tax Notes 782 (Aug. 2, 1999) that the estate tax discourages entrepreneurs from investing their resources in their entrepreneurial activities. The article concludes that the effects of the estate tax on entrepreneurs investing their resources are minimal for two reasons. First, the effective federal estate tax rates applicable to the yield from an investment when the entrepreneur is under age 60 are quite small (0.3% for investors under age 60, 0.1% for investors under age 50). The ...


Fiduciary Relationships Are Not Contracts, Scott T. Fitzgibbon Jan 1999

Fiduciary Relationships Are Not Contracts, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

This Article, which explores the nature of fiduciary relationships, demonstrates that these relationships arise and function in ways that are alien to contractualist thought. While the relationships may, like marriage relationships, be part of the same genus, they are indeed members of a different species. Fiduciary relationships differ both in doctrinal structure and ethical basis. However, some contractualist writing denies one or the other of these two propostitions. This Article, therefore, aims to establish that both are in fact true. The author presents that fiduciary relationships have value and serve purposes that are largely unknown to contractualists. Furthermore, these relationships ...


The Failure Of The Freedom-Based And Utlilitarian Arguments For Assisted Suicide, Scott T. Fitzgibbon Jan 1997

The Failure Of The Freedom-Based And Utlilitarian Arguments For Assisted Suicide, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

In recent years, numerous initiatives have been launched to promote physician-assisted suicide. Numerous statutes have been proposed, and one (in Oregon) has been enacted. The United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Second Circuit were recently persuaded to recognize constitutionally protected rights to assisted suicide, although their decisions have been reversed by the Supreme Court. An international organization called the World Federation of Right-to-Die Societies furthers such efforts in other countries. The two most common justifications for such initiatives are that assisted suicide enhances freedom or liberty, and that ...


The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti Jan 1997

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

Boston College Law School Faculty Papers

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage ...


The Model Physician-Assisted Suicide Act And Jurisprudence Of Death, Scott T. Fitzgibbon, Kwan Kew Lai Jan 1996

The Model Physician-Assisted Suicide Act And Jurisprudence Of Death, Scott T. Fitzgibbon, Kwan Kew Lai

Boston College Law School Faculty Papers

Your State has, let us suppose, a physician in one of its university-affiliated hospitals who is an admirer of Dr. Kevorkian, or a member of the Hemlock Society. The date is a year from now-December 1997. Your State has adopted the Model State Act to Authorize and Regulate Physician-Assisted Suicide (the "Act").

You now have an unexpected interest in the effects of the Act. A friend or a relative-your eighteen-year-old daughter or your nineteen-year-old younger brother or your fifty-five-year-old father--has approached a hospital seeking counseling and relief. Concerned about the sort of advice your loved one may receive, and concerned ...


Delaware Fiduciary Duty Law After Qvc And Technicolor: A Unified Standard (And The End Of Revlon Duties?), Lawrence A. Cunningham, Charles M. Yablon Jan 1994

Delaware Fiduciary Duty Law After Qvc And Technicolor: A Unified Standard (And The End Of Revlon Duties?), Lawrence A. Cunningham, Charles M. Yablon

Boston College Law School Faculty Papers

This Article seeks to analyze and understand Paramount Communications, Inc. v. QVC Network, Inc. and Cede & Co. v. Technicolor, Inc. as part of a movement in Delaware fiduciary law toward a single, more unified standard, away from doctrinal fragmentation. In addition, the Article considers Delaware law leading up to QVC and Technicolor, tracing both the growing fragmentation of Delaware law in the 1980s and the growing judicial concern about fragmentation. This Article will argue that the concern over fragmentation and the desire for a unified standard were not the result of external pressures or policy concerns, but of internal judicial ...


Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault Jun 1992

Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault

Boston College Law School Faculty Papers

In this Article, Professor Ault begins with an examination of the evolution of treaty principles for the allocation of and restrictions on international taxing jurisdiction. He then focuses on how economically based principles dealing with the taxation of international income affect treaty policy and presents the basic structural provisions involving the taxation of foreign income and foreign investors that emerge from domestically enacted or proposed integration systems. The technical aspects of the actual treaty practices that have been implemented with respect to integration systems are then related to the theoretical discussion. Professor Ault concludes with an examination of the implications ...


Lawyering And Client Decisionmaking: Informed Consent And The Legal Profession, Mark Spiegel Nov 1979

Lawyering And Client Decisionmaking: Informed Consent And The Legal Profession, Mark Spiegel

Boston College Law School Faculty Papers

In this Article, Professor Spiegel examines the doctrine of informed consent as it relates to the legal profession. The Article first traces the development of the informed-consent doctrine and then considers the extent to which current legal doctrines and professional norms incorporate informed consent between lawyers and their clients. Professor Spiegel suggests that the predominant focus of informed consent is on a lawyer’s power to bind his client vis-à-vis third parties and advocates for the development of an informed-consent doctrine that accounts for the interests of all parties involved. Professor Spiegel concludes with a discussion of the application of ...


Review Of Society And The Law, By F. James Davis, Henry H. Foster, E. Eugene Davis And C. Ray Jeffery, Sanford N. Katz Jan 1963

Review Of Society And The Law, By F. James Davis, Henry H. Foster, E. Eugene Davis And C. Ray Jeffery, Sanford N. Katz

Boston College Law School Faculty Papers

No abstract provided.