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Boston College Law School

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Full-Text Articles in Legal History

The Rise Of An Academic Doctorate In Law: Origins Through World War Ii, Gail J. Hupper Mar 2007

The Rise Of An Academic Doctorate In Law: Origins Through World War Ii, Gail J. Hupper

Boston College Law School Faculty Papers

The rise of the academic doctorate in law (a degree most U.S. scholars have either ignored or deprecated) is an important chapter in the story of law’s coming of age as an academic discipline in the first half of the 20th century. Drawing in part on continental European models, the architects of the degree shaped it into a vehicle for training a new class of law teachers, producing research into the nature and functioning of the legal system, and spreading emerging conceptions of law to a broader national audience. Notable among these conceptions were the “sociological jurisprudence” of ...


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 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 ...


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 ...


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 ...


"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette Mar 2004

"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette

Boston College Law School Faculty Papers

Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and ...


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 ...


Environmental Law In The Political Ecosystem - Coping With The Reality Of Politics, Zygmunt J.B. Plater Jan 2002

Environmental Law In The Political Ecosystem - Coping With The Reality Of Politics, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

In this Essay, the proposition the author draws from the narrative of the endangered species litigation is derivatively Aristotelian – that we must consciously, actively, and explicitly integrate an informed consideration of human politics into what we teach and do in environmental law. The proposition is not that we should steep ourselves in party politics, although there are interesting observations aplenty that could be made on the direct consequences that the two major parties (and occassionally their wistful smaller incarnations) have on the evolution of environmental law. The proposition offered here operates at two different levels: practical politics and political overview ...


Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman Dec 2001

Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman

Boston College Law School Faculty Papers

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article ...


The Place Of Workers In Corporate Law, Kent Greenfield Jan 2001

The Place Of Workers In Corporate Law, Kent Greenfield

Boston College Law School Faculty Papers

This article critiques the low place of workers within corporate law doctrine. Corporate law, as it is traditionally taught, is primarily about shareholders, boards of directors, and managers, and the relationships among them. This is despite the fact that workers provide an essential input to a corporation's productive activities, and that the success of the business enterprise quite often turns on the success of the relationship between the corporation and those who are employed by it. Black letter corporate law requires directors to place the interests of shareholders above the interests of all other "stakeholders," including workers. This article ...


Why Pragmatism Works For Me, Catharine P. Wells Nov 2000

Why Pragmatism Works For Me, Catharine P. Wells

Boston College Law School Faculty Papers

In this Article the author explores the growth of her interest in pragmatic legal theory. Pragmatism is often portrayed as a kind of black hole in the philosophical universe. It is defined not by the weight of its theories but instead by the counterweight of its anti-theoretical teachings. Whatever the reason, pragmatism’s lack of adherents has resulted in a number of misconceptions about its limitations. Among them are: (1) Pragmatism is banal in the sense that it only tells us to continue with our common sense practices (2) Pragmatism is relativistic in that it reduces everything to viewpoint and ...


Putting Watergate Behind Us: Salinas, Sun-Diamond, And Two Views Of The Anticorruption Model, George D. Brown Feb 2000

Putting Watergate Behind Us: Salinas, Sun-Diamond, And Two Views Of The Anticorruption Model, George D. Brown

Boston College Law School Faculty Papers

A central question in the ongoing debate over the future of the American political system is how to deal with public corruption. This Article first examines the dominant theme of the last thirty years: a relatively hard-line approach that Professor Brown refers to as the post-watergate concensus. In recent years, however, this approach has been subject to growing criminalization of government ethics; Professor Brown then turns to what can be viewed as the counterrevolutionary critique. Against this background, he considers the United States Supreme Court's contribution to the debate. Starting with the recent Sun-Diamond and Salinas cases, and drawing ...


Emerging Models For Alternatives To Marriage, Sanford N. Katz Jan 2000

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Boston College Law School Faculty Papers

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to ...


Adoption Laws And Practices In 2000: Serving Whose Interests?, Ruth-Arlene W. Howe Jan 2000

Adoption Laws And Practices In 2000: Serving Whose Interests?, Ruth-Arlene W. Howe

Boston College Law School Faculty Papers

After enactment of the first modern state adoption statute in 1851, adoption in the United States evolved as both a state judicial process and a specialized child welfare service to promote the best interest of children in need of permanent homes. This essay reviews developments during the last quarter of the century that force us to ask whether U.S. adoption is meeting the needs of children, its original child welfare intent, or serving the interests of adults.


Rule 11 Studies And Civil Rights Cases: An Inquiry Into The Neutrality Of Procedural Rules, Mark Spiegel Jan 1999

Rule 11 Studies And Civil Rights Cases: An Inquiry Into The Neutrality Of Procedural Rules, Mark Spiegel

Boston College Law School Faculty Papers

In this article the author discusses the impact of the 1983 amendments of the Federal Rules of Civil Procedure to Rule 11. The Article explores the claim that the 1983 amendments had a disproportionate impact upon civil rights cases, thereby violating the norm of procedural neutrality. In Section I, the author argues that one of the central meanings of procedural neutrality is closely related to the argument that procedural rules should be apolitical. In Section II, the author examines what the studies of Rule 11 reveal about the effect of the 1983 version upon civil rights claims. The author then ...


Copyright Opinions And Aesthetic Theory, Alfred C. Yen Jan 1998

Copyright Opinions And Aesthetic Theory, Alfred C. Yen

Boston College Law School Faculty Papers

In this Article the author contends that judges should be conscious of aesthetics when deciding copyright cases. However, given the inherent ambiguity of aesthetics and the supposedly objective rules and principles that govern judicial opinions, courts implicitly assume a sharp divide between aesthetic reasoning and legal reasoning. Additionally, because aesthetic choices by judges could potentially be deemed government censorship, the two are further considered incompatible. The author argues, however, that this distinction is illusory in that a truly open-minded copyright jurisprudence requires explicit awareness of aesthetics. This argument is supported firstly by a description of four major movements from aesthetic ...


The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti Jan 1997

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

Boston College Law School Faculty Papers

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage ...


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Jan 1993

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Boston College Law School Faculty Papers

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


Keynote Essay: A Modern Political Tribalism In Natural Resources Management, Zygmunt J.B. Plater Jan 1990

Keynote Essay: A Modern Political Tribalism In Natural Resources Management, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The first law of ecology holds that everything is connected to everything else. This conference addresses the challenges and dilemmas of resource management policy on America’s public lands, but it seems useful both for the purposes of the conference and in broader terms to note how resource management is connected to larger questions of global integrity and human governance. This essay explores a troubling fact of modern political life: As the problems of managing the economy and ecology of this nation become ever more complex, subtly-interrelated, pressured and demanding, our processes of legal and political governance might be expected ...


Through The Looking Glass Of Eminent Domain: Exploring The "Arbitrary And Capricious" Test And Substantive Rationality Review Of Governmental Decisions, Zygmunt J.B. Plater Jan 1989

Through The Looking Glass Of Eminent Domain: Exploring The "Arbitrary And Capricious" Test And Substantive Rationality Review Of Governmental Decisions, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

The day-to-day realities of different systems of government can be discerned in the way they handle, in theory and practice, clashes between the individual and the collective will. The structure of contemporary American democracy is no exception. It is comprised of a variegated assortment of judicial formulae for balancing the interests of the individual and the state, most of these formulae tracing back with differing degrees of directness to textual bases in the first nine amendments to the federal Constitution or their state constitutional equivalents. One of these basic structural balancings, encountered early on by every student of American law ...


Theory And Practice In Legal Education: An Essay On Clinical Legal Education, Mark Spiegel Feb 1987

Theory And Practice In Legal Education: An Essay On Clinical Legal Education, Mark Spiegel

Boston College Law School Faculty Papers

In this Article, the author argues that where clinical education fits within the law school curriculum does not have to be viewed as simply a question of whether more skills training is needed to balance the theory of the traditional curriculum. The author posits that stating the question this way obscures the choices already made, as most types of legal education have elements of both theory and practice. However, how the terms “theory” and “practice” are defined strongly influences how various aspects of legal education are perceived. Therefore, the way we view clinical education depends as much upon the viewpoint ...


Of Activism And Erie: The Implication Doctrine’S Implications For The Nature And Role Of The Federal Courts, George D. Brown Mar 1984

Of Activism And Erie: The Implication Doctrine’S Implications For The Nature And Role Of The Federal Courts, George D. Brown

Boston College Law School Faculty Papers

It is clear that Erie is a major precedential foundation for Justices Powell and Rehnquist in their attempt to force a reconsideration of the role of the federal judiciary. In this article, the author finds that a new Erie doctrine has emerged, and it’s a potent counterforce to judicial activism in the nonconstitutional domain. The doctrine can be seen at work most clearly in Justice Powell’s largely successful attack on the practice of implying rights of action from federal statutes. The new Erie doctrine’s implications, however, extend much further. Apart from its practical ramifications, the vision of ...


The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon Jan 1975

The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon

Boston College Law School Faculty Papers

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or ...