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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.


The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette Dec 2006

The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette

Boston College Law School Faculty Papers

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance ...


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 ...


Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy Nov 2006

Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy

Boston College Law School Faculty Papers

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and ...


Law, Norms, And The Breakdown Of The Board, Renee M. Jones Nov 2006

Law, Norms, And The Breakdown Of The Board, Renee M. Jones

Boston College Law School Faculty Papers

This Article considers the dominant claim in corporate law literature that extra-legal mechanisms such as markets and social norms provide adequate safeguards against corporate mismanagement and opportunism. After noting recognized deficiencies in the arguments from market discipline, the Article draws on psychological insights to show that certain behavioral phenomena prevent social norms from appropriately constraining corporate conduct. It then argues that because neither markets nor social norms can sufficiently discipline corporate officials, a credible accountability mechanism is necessary to prevent director conduct standards from deteriorating. Unfortunately, an inveterate tradition of judicial deference in corporate law has undermined the role of ...


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 ...


Interpretative Theory And Tax Shelter Regulation, Brian D. Galle Oct 2006

Interpretative Theory And Tax Shelter Regulation, Brian D. Galle

Boston College Law School Faculty Papers

This Article responds to an important recent essay in the Columbia Law Review by Marvin Chirelstein and Larry Zelenak. Chirelstein and Zelenak propose a dramatic change in tactics in the way that the government attempts to combat tax shelters - that is, efforts by corporations and high-earning individuals to avoid tax by clever manipulations of the technical terms of the Tax Code. For the past seventy years or so, the IRS has responded to these manipulations by urging courts to read the tax statutes purposively, rather than literally, and thus to deny favorable tax treatment to business transactions entered into with ...


Triage In The Trenches Of The Legal Writing Course: The Theory And Methodology Of Analytical Critique, Daniel Barnett Oct 2006

Triage In The Trenches Of The Legal Writing Course: The Theory And Methodology Of Analytical Critique, Daniel Barnett

Boston College Law School Faculty Papers

Providing feedback to written work is one of the most important and challenging aspects of teaching legal writing. Legal writing professors spend a great deal of time and energy critiquing and grading student work. However, few legal writing professionals begin teaching with any formal training on providing feedback to novice legal writers. Fortunately, giving useful comments on student writing is a skill that can be learned. To begin, teachers must learn to prioritize feedback on the most important analytical problems on draft assignments. Focusing on analytical deficiencies helps students understand that substantive problems must be corrected before writing and stylistic ...


Extended Work Duration And The Risk Of Self-Reported Percutaneous Injuries In Interns, Dean M. Hashimoto, Najib T. Ayas, Laura K. Barger, Brian E. Cade, Bernard Rosner, John W. Cronin, Frank E. Speizer, Charles A. Czeisler Sep 2006

Extended Work Duration And The Risk Of Self-Reported Percutaneous Injuries In Interns, Dean M. Hashimoto, Najib T. Ayas, Laura K. Barger, Brian E. Cade, Bernard Rosner, John W. Cronin, Frank E. Speizer, Charles A. Czeisler

Boston College Law School Faculty Papers

Context: In their first year of postgraduate training, interns commonly work shifts that are longer than 24 hours. Extended-duration work shifts are associated with increased risks of automobile crash, particularly during a commute from work. Interns may be at risk for other occupation-related injuries.

Objective: To assess the relationship between extended work duration and rates of percutaneous injuries in a diverse population of interns in the United States.

Design, Setting, and Participants: National prospective cohort study of 2737 of the estimated 18 447 interns in US postgraduate residency programs from July 2002 through May 2003. Each month, comprehensive Web-based surveys ...


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 ...


Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham Sep 2006

Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Large audit firms may believe that they are too big to fail. Arthur Andersen’s 2002 criminal indictment reduced their number from five to four, and the government decided in 2005 to avoid indicting KPMG for crimes it admitted committing. If audit firms interpret the government’s reluctance to indict as signaling aversion to tough action against them, moral hazard arises. This offsets auditing improvements mandated by the Sarbanes-Oxley Act of 2002 that are designed to strengthen auditors’ reputations with managers for thoroughness and improve financial statement reliability. Neutralizing this moral hazard requires a credible alternative industry structure so that ...


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 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 ...


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 ...


In Memoriam – Monroe L. Inker: 1925-2006, Sanford N. Katz Jun 2006

In Memoriam – Monroe L. Inker: 1925-2006, Sanford N. Katz

Boston College Law School Faculty Papers

No abstract provided.


Sectionalism, Slavery And The Threat Of War In Josiah Quincy Jr.’S 1773 Southern Journal, Daniel R. Coquillette Jun 2006

Sectionalism, Slavery And The Threat Of War In Josiah Quincy Jr.’S 1773 Southern Journal, Daniel R. Coquillette

Boston College Law School Faculty Papers

No abstract provided.


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 ...


The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette May 2006

The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette

Boston College Law School Faculty Papers

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance ...


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 ...


Ignatian Spirituality And The Life Of The Lawyer: Finding God In All Things – Even In The Ordinary Practice Of The Law, Gregory A. Kalscheur S.J. May 2006

Ignatian Spirituality And The Life Of The Lawyer: Finding God In All Things – Even In The Ordinary Practice Of The Law, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

All of us know lawyers who seem unhappy, unfree, directionless, and dis-integrated, who seem to be following paths they haven’t consciously chosen, leading them to places they would never have chosen to go, seemingly locked in lives they haven’t freely chosen to live. Some would characterize this reality as a manifestation of a spiritual crisis, a crisis of meaning and value in the law, rooted in the difficulty lawyers have integrating the practice of the law into the whole of their lives. This article argues that the spirituality flowing from the life of Ignatius of Loyola, the founder ...


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 ...


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 ...


Conflict Of Laws For Transactions In Securities Held Through Intermediaries, James S. Rogers Apr 2006

Conflict Of Laws For Transactions In Securities Held Through Intermediaries, James S. Rogers

Boston College Law School Faculty Papers

The evolution of the modern system of securities holding through intermediaries poses particularly difficult conflict of laws issues. The traditional approach to conflict of laws suggests that the law governing a transaction in securities is determined by the location of the securities; yet under modern conditions it is difficult in practice, if not impossible in theory, to determine that location. A recent project of the Hague Conference on Private International Law has confronted these problems and devised a workable, modern approach. For any such project to succeed, lawyers must be willing to abandon traditional concepts of conflict of laws such ...


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 ...


Third Party Copyright After Grokster, Alfred C. Yen Feb 2006

Third Party Copyright After Grokster, Alfred C. Yen

Boston College Law School Faculty Papers

This Article studies the construction of third party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third party copyright liability is unclear. Grokster involved a claim of third party liability against defendants whose technology supported the sharing of music over the Internet, and it represents the Supreme Court’s attempt to bring coherence to the relevant law. Grokster is a difficult case to understand. It added a ...


Review Of The World Trade Organization: Law, Practice And Policy, Frank J. Garcia Jan 2006

Review Of The World Trade Organization: Law, Practice And Policy, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Why Trade Law Needs A Theory Of Justice, Frank J. Garcia Jan 2006

Why Trade Law Needs A Theory Of Justice, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Toward An Ecclesiastical Professional Ethic: Lessons From The Legal Profession, Daniel R. Coquillette, Judith A. Mcmorrow Jan 2006

Toward An Ecclesiastical Professional Ethic: Lessons From The Legal Profession, Daniel R. Coquillette, Judith A. Mcmorrow

Boston College Law School Faculty Papers

As the Catholic Church struggles with the aftermath of the clergy sexual abuse crisis, some have explored the possibility of an ecclesiastical code of professional conduct. Lawyers' long and storied history with professional codes offers a cautionary tale to those exploring an ecclesiastical code of ethics. As priests to our secular religion of law, lawyers are called forth and mandated by a competent authority to function in a defined role, the specifics of which are reflected, in part, in lawyer codes.

As lawyers moved from Canons of Ethics (1908) to a Code of Professional Responsibility (1969) to Rules of Professional ...


Does Federalism Matter? Its Perplexing Role In The Corporate Governance Debate, Renee M. Jones Jan 2006

Does Federalism Matter? Its Perplexing Role In The Corporate Governance Debate, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.