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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 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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


The Seduction Of Lydia Bennet: Toward A General Theory Of Society, Marriage, And The Family, Scott T. Fitzgibbon Jan 2006

The Seduction Of Lydia Bennet: Toward A General Theory Of Society, Marriage, And The Family, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

This article sketches the foundation for a general theory of society. Rejecting portrayals that make society a field of exploitation and dominance, it proposes instead an account that locates the foundation of society in its service of certain basic goods. Society is a kind of friendship. It is to be defined based on the goods of friendship and the projects that serve those goods. Its elements, including those of obligation, office, shame, and rehabilitation, further those goods. The society that emerges from this account is a "society of life."

This article also proposes the concept of "components of society," reflecting ...


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.