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2014

Boston College Law School

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Articles 1 - 30 of 230

Full-Text Articles in Law

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo Dec 2014

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo D. Barrozo

Boston College Law School Faculty Papers

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension ...


Bc Law, Tufts Launch Jd/Mph Dual Degree Program, Boston College Law School Dec 2014

Bc Law, Tufts Launch Jd/Mph Dual Degree Program, Boston College Law School

Law School Publications

No abstract provided.


Book Review: Minds, Brains, And The Law: The Conceptual Foundations Of Law And Neuroscience, Karen Breda Dec 2014

Book Review: Minds, Brains, And The Law: The Conceptual Foundations Of Law And Neuroscience, Karen Breda

Boston College Law School Faculty Papers

Review of Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience by Michael S. Pardo and Dennis Patterson, published by Oxford University Press.


Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel A. Lyons Dec 2014

Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel A. Lyons

Boston College Law School Faculty Papers

The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the ...


The Constructive Role Of Confusion In Trademark, Alfred C. Yen Dec 2014

The Constructive Role Of Confusion In Trademark, Alfred C. Yen

Boston College Law School Faculty Papers

This Article argues that consumer confusion plays a pervasive and important role in our trademark system. This argument directly challenges well-established orthodoxy. Numerous Supreme Court opinions and leading academics take the position that trademark law exists to reduce consumer confusion as much as possible. Indeed, courts generally justify aggressive creation and enforcement of trademark rights on the ground that these rights reduce consumer confusion or its economic equivalent, consumer search costs. Unfortunately, this construction of trademark law rests on a fundamental misunderstanding about how consumer confusion, the trademark system, and the operation of markets relate to one another. In particular ...


Justice Alito’S Dissent In Loving V. Virginia , Christopher R. Leslie Nov 2014

Justice Alito’S Dissent In Loving V. Virginia , Christopher R. Leslie

Boston College Law Review

In 1967, in Loving v. Virginia, the U.S. Supreme Court unanimously struck down miscegenation statutes, which criminalized interracial marriage, as unconstitutional. In 2013, the Court in United States v. Windsor invalidated Section 3 of the so-called Defense of Marriage Act (“DOMA”), which precluded federal agencies from recognizing marriages between same-sex couples even if the marriages were legally valid in the couples’ home state. While Loving was a unanimous decision, the Court in Windsor was closely divided. Almost half a century after Chief Justice Warren issued his unanimous Loving opinion, the Loving dissent has been written. Justice Alito authored it ...


A Dynamic Theory Of Judicial Role, David Landau Nov 2014

A Dynamic Theory Of Judicial Role, David Landau

Boston College Law Review

Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the judicial and academic effort in these contexts is self-consciously oriented towards using courts to carry out basic improvements in the quality of political systems seen as badly deficient. In other words, the core task is to improve the quality of the democratic system over time. These ...


Elementary Statutory Interpretation: Rethinking Legislative Intent And History , Victoria F. Nourse Nov 2014

Elementary Statutory Interpretation: Rethinking Legislative Intent And History , Victoria F. Nourse

Boston College Law Review

This Article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This Article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures ...


Protecting Government Defense Contracting With A Purpose: Interpreting Civil Liability Under The Anti-Kickback Act, Bryan C. Curran Nov 2014

Protecting Government Defense Contracting With A Purpose: Interpreting Civil Liability Under The Anti-Kickback Act, Bryan C. Curran

Boston College Law Review

The Department of Defense awards over $600 billion in government defense contracts to private contractors every year. The magnitude of these awards and the structure of defense contracts place the government at serious risk if fraud and misrepresentation are not adequately regulated and prosecuted. The Anti-Kickback Act of 1986 seeks to protect the government from fraud by imposing damages on prime contractors that either accept kickbacks or include the cost of kickbacks in their contract prices. The Act’s civil liability provision provides for direct and vicarious liability against prime contractor corporations whose employees or subcontractors engage in kickback activity ...


Light, Smoke, And Fire: How State Law Can Provide Medical Marijuana Users Protection From Workplace Discrimination, Elizabeth Rodd Nov 2014

Light, Smoke, And Fire: How State Law Can Provide Medical Marijuana Users Protection From Workplace Discrimination, Elizabeth Rodd

Boston College Law Review

Currently, twenty-three states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, marijuana use—both recreational and medicinal—remains illegal under the federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to enjoy their new medical marijuana privileges. To date, courts have refused to grant protections to employees who have suffered adverse employment action for ...


Opening The Schoolhouse Gate: Why The Supreme Court Should Adopt The Standard Announced In Tatro V. Supreme Court Of Minnesota To Permit The Regulation Of Non-Curricular Student Speech In Professional Programs, Mark A. Cloutier Nov 2014

Opening The Schoolhouse Gate: Why The Supreme Court Should Adopt The Standard Announced In Tatro V. Supreme Court Of Minnesota To Permit The Regulation Of Non-Curricular Student Speech In Professional Programs, Mark A. Cloutier

Boston College Law Review

Free speech in public schools has long been a divisive and intriguing issue. The topic is particularly contentious in post-secondary education where many of the maturity-driven and family surrogate rationales for restricting student speech fall away. Furthermore, with the advent of the Internet and the explosion of social media, it is now nearly impossible to draw a meaningful line between student speech rights on school grounds and student speech rights beyond them. This Note examines what happens when a student enrolled in a post-secondary program violates an established code of conduct or professional ethics using a non-curricular form of Internet ...


Lethal Injection Secrecy And Eighth Amendment Due Process , Eric Berger Nov 2014

Lethal Injection Secrecy And Eighth Amendment Due Process , Eric Berger

Boston College Law Review

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure the state plans to use. This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state ...


The Rise Of The End User In Patent Litigation, Gaia Bernstein Nov 2014

The Rise Of The End User In Patent Litigation, Gaia Bernstein

Boston College Law Review

The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But, end users are increasingly becoming significant players in the patent system, with their interests sometimes diverging from those of competitors. Attention has recently turned to Patent Assertion Entities (“PAEs”)—also known as patent trolls—who are suing vast numbers of customers using patented technologies in their everyday businesses. Yet, end users were also principal players in some of the main recent patent cases before the U.S. Supreme Court. In Bowman ...


The Accommodation Of Last Resort: The Americans With Disabilities Act And Reassignments, Michael Creta Nov 2014

The Accommodation Of Last Resort: The Americans With Disabilities Act And Reassignments, Michael Creta

Boston College Law Review

In 1990, Congress enacted the Americans with Disabilities Act (“ADA”) to eliminate widespread discrimination against disabled persons. The Act requires private employers to provide reasonable accommodations to disabled employees to allow them to continue performing essential job functions. One accommodation in particular has divided the U.S. Circuit Courts of Appeals: reassigning disabled employees to vacant positions. Due to a current circuit split, it is unclear if employers must reassign disabled employees despite maintaining policies of choosing the best-qualified employees for reassignment. This Note argues that both the text of the ADA and the ADA’s legislative history support automatic ...


Bc Law Review Editors Part Of Israel Delegation, Boston College Law School Nov 2014

Bc Law Review Editors Part Of Israel Delegation, Boston College Law School

Law School Publications

No abstract provided.


Opening India’S Legal Market: The Madras High Court Cracks The Door For Foreign Lawyers, Katie Feuer Nov 2014

Opening India’S Legal Market: The Madras High Court Cracks The Door For Foreign Lawyers, Katie Feuer

Boston College International and Comparative Law Review

Until 2012 India, barred foreign lawyers from formally practicing law in the country. On February 21, 2012, however, the Madras High Court, in A.K. Balaji v. Gov’t of India, handed a victory to international law firms keen on entering the Indian market alongside their globalizing clients. The Balaji decision marked the Indian judiciary’s first concerted effort to carve back the blanket prohibition, by permitting foreign lawyers to enter India on a temporary basis to conduct arbitrations, or advise clients on matters of foreign and international law. Although many practitioners and scholars alike applaud the Madras Court’s ...


Proportionality: An Addition To The International Centre For The Settlement Of Investment Disputes’ Fair And Equitable Treatment Standard, Anne Marie Martin Nov 2014

Proportionality: An Addition To The International Centre For The Settlement Of Investment Disputes’ Fair And Equitable Treatment Standard, Anne Marie Martin

Boston College International and Comparative Law Review

The fair and equitable treatment standard, established in state law, customary law, and bilateral investment treaties, requires that states treat investors in a consistent and transparent manner. With its decision in Occidental Petroleum Corp., Occidental Exploration and Production Company v. Republic of Ecuador, the International Centre for the Settlement of Investment Disputes (ICSID) interpreted the ever-expanding fair and equitable treatment standard to include the principle of proportionality. After concluding that Ecuador’s termination of the investor’s contract was a disproportionate response to the investor’s breach of that contract, the ICSID Tribunal awarded an incredible $1.77 billion in ...


Exhausted Yet? The First-Sale Doctrine And The Second-Hand Market For Software Licenses In The European Union, May Khoury Nov 2014

Exhausted Yet? The First-Sale Doctrine And The Second-Hand Market For Software Licenses In The European Union, May Khoury

Boston College International and Comparative Law Review

In UsedSoft GmbH v. Oracle International Corporation, the Court of Justice of the European Union held that owners of software copyright could not prohibit the resale of used perpetual licenses allowing the use of such programs. The decision promises to significantly affect the software market and other digital industries. It also illustrates an instance where the CJEU forces a decision using well-established principles rather than adapting to an ever-changing technological landscape. While the CJEU’s ruling came as a surprise to many in how far it was willing to go in applying the principle of exhaustion to intangible materials, its ...


Leveraging Litigation: Enforcing Sovereign Debt Obligations In Nml Capital, Ltd. V. Republic Of Argentina, Emma Kingdon Nov 2014

Leveraging Litigation: Enforcing Sovereign Debt Obligations In Nml Capital, Ltd. V. Republic Of Argentina, Emma Kingdon

Boston College International and Comparative Law Review

In the sovereign debt market, the typical remedies to resolve sovereign default are either the negotiation route or a unilateral exchange offer. However, as a result of increasing insecurity in the sovereign debt market due to rogue sovereign debtors who take advantage of their immunity to opportunistically default and create unfavorable restructuring deals, creditors began resorting to a previously limited remedy: litigation. Although litigation to resolve sovereign default was not a new concept in the sovereign debt market, it was ineffective due to the creditor’s inability to actually recover the money judgment from the sovereign debtor. In NML Capital ...


The Buck Stops Here: Fundamental Rights Infringements Can No Longer Be Ignored When Transferring Asylum Seekers Under Dublin Ii, Xing-Yin Ni Nov 2014

The Buck Stops Here: Fundamental Rights Infringements Can No Longer Be Ignored When Transferring Asylum Seekers Under Dublin Ii, Xing-Yin Ni

Boston College International and Comparative Law Review

Many asylum seekers entering the European Union (EU) cross more than one Member State border before lodging their asylum claims. In response, the EU adopted Dublin II to designate the point of first entry, rather than the point of application, as the State responsible for examining the claim. Unfortunately, this allocation of examination responsibilities overburdens States on the frontline of entry, such as Greece, and has exacerbated the systemic deficiencies in these states’ asylum systems. The Court of Justice of the European Union’s decision in the Joined Cases C-411/10 & C-493/10 helped clarify that a receiving state cannot ...


Removing Arbitrary Handicaps: Protecting The Right To Education In Horváth And Kiss V. Hungary, Kerime Sule Akoglu Nov 2014

Removing Arbitrary Handicaps: Protecting The Right To Education In Horváth And Kiss V. Hungary, Kerime Sule Akoglu

Boston College International and Comparative Law Review

On January 29, 2013, in Horváth and Kiss v. Hungary, the European Court of Human Rights held that educational testing in Hungary violated the European Convention on Human Rights. The court found that the tests used in Hungary had a disproportionate effect on the Roma population and that the state has a positive obligation to remedy such practices. This Comment argues that the imposition of positive obligations on states to provide safeguards for disadvantaged groups, like the Roma, is an effective method to correct a troubled history of racial segregation in public schools. This Comment also argues that without such ...


Famigration (Fam Imm): The Next Frontier In Immigration Law, Kari E. Hong Oct 2014

Famigration (Fam Imm): The Next Frontier In Immigration Law, Kari E. Hong

Boston College Law School Faculty Papers

The recently published article, Immigration’s Family Values by Professor Kerry Abrams and R. Kent Piacenti, and the forthcoming Removing Citizens: Parenthood, Citizenship, and Immigration Courts by Kari Hong examine how, when, and why immigration law uses a different definition of family than the one used in state courts. Despite their differences, in conversation, these two pieces highlight how the Department of Homeland Security likely is either following misguided policies or pursuing improper objectives when creating a federal family law. Crimmigration (Crim Imm) scholarship successfully identified the ways in which the (purported) civil proceedings of immigration law needed the extra ...


Things I Learned From A Very Small Fish (Tedxbeaconstreet Presentation), Zygmunt J.B. Plater Oct 2014

Things I Learned From A Very Small Fish (Tedxbeaconstreet Presentation), Zygmunt J.B. Plater

Snail Darter Documents

This talk was given at a local TEDx event, produced independently of the TED Conferences. A notorious story about a small endangered fish that traveled far through the corridors of American government; also a parable about citizen action, a parable perhaps even more useful because it’s true.

Deemed “The Most Extreme Environmental Case Ever”, Zygmunt Plater and a team students in Tennessee used the endangered little “snail darter” fish to help several hundred family farmers and fishermen block a pork-barrel dam that was going to destroy far more—in economic and ecological term—than it ever could produce. A ...


Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater Oct 2014

Joseph Sax, A Human Kaleidoscope, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

Probably more than any other person most of us will ever have the opportunity of knowing, Joe Sax was kaleidoscopic in the way he projected his mind and lived his life as a scholar, teacher, and citizen seer. Shifting his analytical gaze from challenging context to challenging context, he repeatedly threw rich new patterns of perceptive light, thoughts broad and deep, onto a remarkable range of puzzles. Joe’s ability to think broadly and deeply influenced and reshaped the way that his students, friends, colleagues, and readers understood the intricacies, beauty, and challenges of the world around them. Others in ...


Bc Innocence Program Event: "Exoneration By Investigation", Boston College Law School Sep 2014

Bc Innocence Program Event: "Exoneration By Investigation", Boston College Law School

Law School Publications

No abstract provided.


Pragmatic Liberalism: The Outlook Of The Dead, Justin Desautels-Stein Sep 2014

Pragmatic Liberalism: The Outlook Of The Dead, Justin Desautels-Stein

Boston College Law Review

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that “law in the books” had drifted too far from the “law in action.” This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and ...


An Era Of Continued Neglect: Assessing The Impact Of Congressional Exemptions For Alaska Natives, Samuel Gottstein Sep 2014

An Era Of Continued Neglect: Assessing The Impact Of Congressional Exemptions For Alaska Natives, Samuel Gottstein

Boston College Law Review

Although Native Americans in the contiguous United States have benefited from recent congressional reforms, Alaska Native communities were largely ignored. Despite the widely acknowledged crisis of sexual assault and domestic violence in rural Alaska Native communities, Congress has explicitly exempted Alaska from legislation that would otherwise give people in these communities the ability to protect themselves. Although public outcry has prompted pending legislation in Congress to repeal some of these exemptions, such as the Alaska Safe Families and Villages Act, even that legislation does not go far enough to achieve a permanent and effective solution to what is a life-or-death ...


I Came, Itar, I Conquered: The International Traffic In Arms Regulations, 3d-Printed Firearms, And The First Amendment, Anthony M. Masero Sep 2014

I Came, Itar, I Conquered: The International Traffic In Arms Regulations, 3d-Printed Firearms, And The First Amendment, Anthony M. Masero

Boston College Law Review

The rise of 3D printers presents unique regulatory challenges in many areas, particularly firearm regulations. The Texas non-profit, Defense Distributed, successfully developed a 3D printable lower receiver for the AR-15 assault rifle and a 3D .380 pistol capable of firing eight rounds. Current regulations cannot meaningfully govern the 3D printing of guns without an effective means of controlling and standardizing the distribution of the CAD files online. This Note argues that the existing regulatory scheme, which governs the dissemination of technical data related to firearms, unconstitutionally restricts expression. The regulatory scheme gives broad discretion to licensing officials, and fails to ...


Counsel For The Divorce, Rebecca Aviel Sep 2014

Counsel For The Divorce, Rebecca Aviel

Boston College Law Review

This article challenges the legal profession’s foundational assumption that legal services must be delivered in an adversarial posture, with lawyers compelled to engage in robust partisan advocacy on behalf of their clients’ individualized interests. This narrow conception of the lawyer’s role is particularly inapt in family law because many divorcing spouses actually seek joint counsel, understanding that they have profound shared interests in minimizing transaction costs, maximizing the value of the marital estate, and reducing the hostility and animosity that are so harmful to children. Couples who wish to advance these interests by retaining joint counsel are poorly ...


National Pastime(S), Tom C.W. Lin Sep 2014

National Pastime(S), Tom C.W. Lin

Boston College Law Review

In his new book, Baseball as a Road to God, New York University President and Professor of Law John Sexton submits that baseball can serve as a vehicle for living a more conscious life that elevates the human experience for lawyers and non-lawyers. This Essay examines the credibility of the book’s thesis in a world where human intelligence, human deliberation, and human action is being replaced by artificial intelligence, mathematical models, and mechanical automation. It uses the preeminent national pastime of baseball, and the less eminent pastimes of law and finance as case studies for the book’s thesis ...