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“Law &” Meets “Law As”, Linda L. Berger Jan 2016

“Law &” Meets “Law As”, Linda L. Berger

Scholarly Works

Prof. Berger reviews The Handbook of Law and Society, edited by Austin Sarat and Patrick Ewick.


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 ...


Readability Studies: How Technocentrism Can Compromise Research And Legal Determinations, Louis J. Sirico Jr. Feb 2008

Readability Studies: How Technocentrism Can Compromise Research And Legal Determinations, Louis J. Sirico Jr.

Working Paper Series

One way to determine whether consumers understand a document is to use a readability formula to assign it a score. These formulas calculate readability by counting such variables as the number of words and syllables in a passage or document. The idea of readability formulas has been defined as “an equation which combines those text features that best predict text difficulty. The equation is usually developed by studying the relationship between text features (e.g., words, sentences) and text difficulty (e.g., reading comprehension, reading rate, and expert judgment of difficulty).” Even though readability formulas are mechanical and imperfect, they ...


Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay Apr 2007

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Boston College Law School Faculty Papers

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns ...


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 ...


Critical Legal Ethics, Paul R. Tremblay Jan 2007

Critical Legal Ethics, Paul R. Tremblay

Boston College Law School Faculty Papers

In this essay, Professor Tremblay reviews the book Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, edited by Susan D. Carle and with a foreword by Robert W. Gordon, published by New York University Press in 2005.


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.


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 Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown May 2006

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

Boston College Law School Faculty Papers

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and ...


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 ...


Dealing With Dumb And Dumber: The Continuing Mission Of Citizen Environmentalism, Zygmunt J.B. Plater May 2006

Dealing With Dumb And Dumber: The Continuing Mission Of Citizen Environmentalism, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Surveying the history of citizen environmentalism in the context of environmental law and politics over the past fifty years, this essay hypothesizes five different categories of corporate, governmental, political, and individual actions that deserve to be called “dumb,” and the societal lessons that have been or could be learned from each. If there is truth to the wistful aphorism that “we learn from our mistakes,” then our society is in position to learn a great deal about our world and how it works, which perhaps provides some ground for hope for the years to come. Environmentalism embodies fundamentally rational and ...


The Notion Of Solidarity And The Secret History Of American Labor Law, Thomas C. Kohler Apr 2006

The Notion Of Solidarity And The Secret History Of American Labor Law, Thomas C. Kohler

Boston College Law School Faculty Papers

“Solidarity,” a term not overly familiar to Americans, sometimes seems to have as many meanings as it has users. The concept became incorporated into American thought during the 19th and 20th century waves of Catholic and Jewish immigration. It provides a European vision of communitarian social order that competes with the “unencumbered self”—America’s unique brand of individualism. Among philosophers, politicians, religious thinkers, and social activists, solidarity theory sought to redefine the then-prevailing views of social bonds. Nowhere is this more apparent than in the American labor movement, which espouses as its core values the principles of unity and ...


"Pre-Negotiation" Counseling: An Alternative Model, Paul R. Tremblay Jan 2006

"Pre-Negotiation" Counseling: An Alternative Model, Paul R. Tremblay

Boston College Law School Faculty Papers

This Article describes an alternative model for the process of legal counseling, a model applicable to a very common counseling experience ignored by the conventional Interviewing and Counseling texts—the experience of obtaining negotiating and settlement authority from a client. Counseling is, of course, a basic lawyering skill taught in law school clinics and in simulation courses. It is one of the most critical elements of good lawyering, and it is a skill which can be taught, and taught through the use of models. Every lawyering skills book available includes instruction about effective counseling. But when one reviews the available ...


The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein Jan 2006

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Boston College Law School Faculty Papers

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out ...


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 ...


Who Owns The Local Church? A Pressing Issue For Dioceses In Bankruptcy, Catharine P. Wells Nov 2005

Who Owns The Local Church? A Pressing Issue For Dioceses In Bankruptcy, Catharine P. Wells

Boston College Law School Faculty Papers

The recent bankruptcies of Catholic Dioceses are unprecedented. For the first time, Bankruptcy Courts must deal with the difficult question of who owns the parish church. In this paper, I will explore two possible sources of confusion about this question. The first is the non- commercial, charitable nature of the Church. The second is its organizational complexity. Resolving the confusion requires a familiarity with various different sources of law including charities law, bankruptcy law, trust law, and Canon Law. In this paper I address this issue by: 1. discussing why the equities and policies that govern charitable bankruptcies are different ...


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 ...


Law And Accounting: Cases And Materials (Front Matter), Lawrence A. Cunningham Sep 2005

Law And Accounting: Cases And Materials (Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors’ own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. In so designing this innovative book, readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual ...


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 ...


Globalization And The Theory Of International Law, Frank J. Garcia Jun 2005

Globalization And The Theory Of International Law, Frank J. Garcia

Boston College Law School Faculty Papers

The dominant modern account of the social basis of international law has been the "society of states" model. In this view, to the extent that international law constructs an ordered social space (a claim which has been contested since Hobbes if not before), it is a social space in which states are the actors. This view has had a profound effect on international law. For example, the doctrine of state responsibility classically understands international harms to individuals within a framework of harm to a state's rights. Normatively, to the extent justice is considered an operational concept in international law ...


Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett Jan 2005

Catholic Judges In Capital Cases, John H. Garvey, Amy Coney Barrett

Boston College Law School Faculty Papers

The Catholic Church’s opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church’s teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be ...


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 ...


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 ...


Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom Jan 2004

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Boston College Law School Faculty Papers

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which ...


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 ...


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.


Endangered Species Act Lessons Over 30 Years, And The Legacy Of The Snail Darter, A Small Fish In A Pork Barrel, Zygmunt J.B. Plater Jan 2004

Endangered Species Act Lessons Over 30 Years, And The Legacy Of The Snail Darter, A Small Fish In A Pork Barrel, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Why is it – amidst the flood of environmental statutes that poured into the law books and national consciousness in the remarkable decade of the 1970s – that the Endangered Species Act of 1973 (ESA) stands out as quite uniquely different? This Essay briefly surveys the ESA’s differentness, its special political context, the citizen suit of great notoriety that fired up the ESA’s political hotseat back in 1975, and what has changed and what has not in the years since that first eco-legal outburst.


The Dream Of Interpretation, Anthony P. Farley Jan 2003

The Dream Of Interpretation, Anthony P. Farley

Boston College Law School Faculty Papers

For any given rule, there are infinite interpretations. Yet law and interpretation are inseparable. Interpretation is a complex process, based on murky forces, exposed to some extent in institutions, habits and conventions, which are often poorly understood even by the person charged with the act of interpreting. The article deconstructs—through a series of improvisations on logic, reason, rules, duty, desire, repetition, enchantment, symptom and sin—the dream of interpreting law. Drawing on Wittgenstein, Freud, Kant, Foucault and others from the pantheon of modernism, the article ruminates on the endless prospect of interpretation and the possibility of discord.


Amusing Monsters, Anthony P. Farley Mar 2002

Amusing Monsters, Anthony P. Farley

Boston College Law School Faculty Papers

In this review of Austin Sarat’s important book When the State Kills: Capital Punishment and the American Condition, the reviewer invokes Thomas Hobbes’ Leviathan to inform our understanding of the killing state. Because capital punishment is carried out pursuant to the democratic processes, the execution involves us all, done as it is in our name. Those committed to the end of the killing state, and to the end of the violent hierarchies that allow the killing state to exist, will find Surat’s book “a valuable articulation of a committed and responsible approach to the problems of our time.”