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Full-Text Articles in Law

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.


Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens Nov 2006

Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens

ExpressO

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the ...


Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García Oct 2006

Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García

Bruno L. Costantini García

Ponencia sobre la Ley Federal del Procedimiento Contencioso Administrativo, impartida por Bruno L. Costantini García.


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


The Hermeneutic Foundations Of Qualitative Research, Bernd Reiter Oct 2006

The Hermeneutic Foundations Of Qualitative Research, Bernd Reiter

Government and International Affairs Faculty Publications

This article is the result of reflection that emerged while conducting qualitative field research on nationalism and exclusion in Portugal. The problem I confronted was when to stop interviewing. Stated more precisely, I was seeking an answer to the question of when one has collected enough empirical data to support or reject one’s hypotheses. This initial problem led me to a rather old discussion on the difference between natural and human sciences that has characterized German academic life for many years–in fact, since the early 19th century–producing some more heated phases of academic dispute, known as the ...


Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy Sep 2006

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.


China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto Sep 2006

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record ...


Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy Sep 2006

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by ...


Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater Sep 2006

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The functional linkages between law and media have long been signficant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public ...


How Does The Political Nature Of The Defense Acquisition Process Affect Cost Growth, Nikolaos Gounatidis Sep 2006

How Does The Political Nature Of The Defense Acquisition Process Affect Cost Growth, Nikolaos Gounatidis

Theses and Dissertations

Many of the major programs of the DoD are experiencing cost growth. This research developed an empirical model in order to explain cost overruns. This thesis sought to discover relationships between cost overruns and factors that originate from the political nature of the defense acquisition process. The model describes how the political and legislative balances of power between the parties of the Congress, the change of the purchase habits of the DoD from production to service contracts, and the spreading of defense manufacturing capacity across the U.S are related to cost overruns. This research studied 193 programs from 1970 ...


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 ...


Primer Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García Jul 2006

Primer Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Memorias del Primer Congreso Nacional de Organismos Públicos Autonomos


The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth Jul 2006

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

Boston College Law School Faculty Papers

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Use And Effectiveness Of Contract Schedule Incentives In Air Force Materiel Command, Rodrick A. Koch Jun 2006

Use And Effectiveness Of Contract Schedule Incentives In Air Force Materiel Command, Rodrick A. Koch

Theses and Dissertations

Are contract schedule incentives utilized by our acquisition contracting workforce, and if so what are their effectiveness? This research shows there is not widespread use of these types of incentives. There is also disagreement on their perceived effectiveness. Surveying, via email, the population of contracting officers and buyers within Air Force Materiel Command yielded responses from every center and many large acquisition systems. Only 8.5% of responses showed that they use schedule incentives. These respondents claim that schedule incentives are somewhat effective, yet of the 91.5 % that have not used them, 2-to-l say they would not be effective ...


Review Essay: Radicals In Robes , Dru Stevenson May 2006

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers ...


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 ...


Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager Mar 2006

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative ...


Evaluating Alternatives For Drinking Water At Deployed Locations, Brian S. Hughes Mar 2006

Evaluating Alternatives For Drinking Water At Deployed Locations, Brian S. Hughes

Theses and Dissertations

Because of potential improvements to water security and cost savings, military decision makers may want to consider new means of providing potable water to Airmen in deployed locations. Drilling for water and field bottling show great potential because of the increased security and lower per unit cost when compared to bottled water from approved sources. However, the selection of the best means to supply water is a hard decision which must balance multiple objectives (e.g., security, palatability, and convenience) against limited resources (e.g., cost, airlift, trucks, and personnel). A multi-objective decision analysis model quantifies a decision-maker's values ...


The Impact Of Economic Factors And Acquisition Reforms On The Cost Of Defense Weapon Systems, James P. Smirnoff Mar 2006

The Impact Of Economic Factors And Acquisition Reforms On The Cost Of Defense Weapon Systems, James P. Smirnoff

Theses and Dissertations

Cost overruns in weapon system purchases have plagued the Department of Defense (DoD) throughout its history and have resulted in schedule delays and potentially reduced combat capability. This thesis created an empirical model that begins to explain those cost overruns. The model describes how changes in defense budgets, consolidation of the defense industry, acquisition reform, war, and cost estimating error are related to cost overruns. The cost performance of 186 major weapon system programs managed by the Air Force, Army, and Navy from 1970 to 2002 was described using a panel regression model. This research found that funding instability resulting ...


Risk-Based Decision Model For Determining The Applicability Of An Earned Value Management System In Construction, Mark D. Workman Mar 2006

Risk-Based Decision Model For Determining The Applicability Of An Earned Value Management System In Construction, Mark D. Workman

Theses and Dissertations

New policy mandated by the Undersecretary of Defense for Acquisition, Technology and Logistics has lowered the dollar thresholds of contracts requiring earned value management (EVM). This policy directed that a "risk-based decision" be made to determine if EVM should be used on firm-fixed price contracts under $20 million. Although not previously applicable to Military Construction (MILCON) building projects or other Air Force Civil Engineer (CE) managed contracts, the new threshold requires that CE projects be evaluated for risk. Therefore, the focus of this research was to analyze the risk factors associated with construction contracts in an attempt to build a ...


A Decision Analysis Tool For The Source Selection Process, John R. Trumm Mar 2006

A Decision Analysis Tool For The Source Selection Process, John R. Trumm

Theses and Dissertations

The source selection process for choosing a contractor does not incorporate a standardized objective decision analysis tool; therefore, the process is extremely subjective and provides little guidance to distinguish between highly competitive contractors. The Air Force Simplified Acquisition of Base Engineer Requirements (SABER) program selects contractors through a Low Price Technically Acceptable (LPTA) source selection process and encounters the same problem of not being able to objectively distinguish between the competing contractors. The LPTA process rank orders the contractors based on price and evaluates the bidders in order until an 'exceptional' contractor is discovered. However, the SABER source selection committee ...


Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber Mar 2006

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.


Predicting The Effects Of Contingency Contracting On Local Economies, Donald J. Wagoner Mar 2006

Predicting The Effects Of Contingency Contracting On Local Economies, Donald J. Wagoner

Theses and Dissertations

In recent years, Air Force personnel have been deployed in support of contingency operations to various points on the globe. The Department of Defense spends millions of dollars to support and sustain forces during contingency operations. The Air Force deploys Contingency Contracting Officers (CCO) to support personnel during these operations. During a contingency operation contracting officers will normally establish short-term contracts as quickly as possible to meet mission requirements with little concern for the local economy. This research concluded that the actions of Air Force CCOs can affect the local economy in a deployed location. By providing contingency contracting officers ...


A Market Reaction To Dod Contact Delay, Robert D. Carden Mar 2006

A Market Reaction To Dod Contact Delay, Robert D. Carden

Theses and Dissertations

Development projects are occurring at a faster rate in the civilian world than for the Department of Defense (DoD). In the civilian world, faster development means quicker delivery and sales. In the DoD, quicker product development equates to a more capable warfighter. On average, DoD Acquisition Category One (ACAT I) development projects are approaching a 15 year procurement cycle. In the last three years, acquisition cycle time has grown nearly 20 percent. It turns out that the very companies that have learned to be faster, leaner and more effective in their civilian endeavors do not seem to be functioning the ...


Cost As An Independent Variable: A Study Of Its Continued Use By Aeronautical Systems Center's Programs And Their Contractors To Set And Maintain Cost Objectives, Kevin W. Codrington Mar 2006

Cost As An Independent Variable: A Study Of Its Continued Use By Aeronautical Systems Center's Programs And Their Contractors To Set And Maintain Cost Objectives, Kevin W. Codrington

Theses and Dissertations

The purpose of this research was to assess whether Aeronautical System Center's (ASC's) acquisition professionals believe CAIV has enabled their programs and contractors to set and maintain cost objectives. The three major objectives of this thesis are to answer the following questions: First, Do ASC's acquisition professionals believe their programs are setting and maintaining cost objectives? Second, Do ASC's acquisition professionals believe their contractors are setting and maintaining cost objectives? Last, what is the practitioners' perspective of CAIV? This research identified CAIV as being well received by DoD. It also identified that ASC's acquisition professionals ...


Acquisition Program Re-Baselines: Theory And Practice, Troy A. Suarez Mar 2006

Acquisition Program Re-Baselines: Theory And Practice, Troy A. Suarez

Theses and Dissertations

The United States Government requires every program manager in the Department of Defense to document program goals prior to the initiation of an acquisition program. According to the Defense Acquisition Guidebook (2005), an Acquisition Program Baseline (APB) satisfies this requirement. Updating the APB, also referred to as re-baselining, may also be required during the execution of an acquisition program. Although guidance is available for the initial production of a program baseline, scarce information on the guidance and theoretical purpose of a program re-baseline exists. The research presented in this thesis investigated the purpose and effectiveness of program re-baselines through interviews ...


Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding Feb 2006

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to ...


Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi Jan 2006

Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi

The John Marshall Law Review

No abstract provided.