Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

PDF

Boston College Law School

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 468

Full-Text Articles in Legal History

The Captive Lab Rat: Human Medical Experimentation In The Carceral State, Laura I. Appleman Jan 2020

The Captive Lab Rat: Human Medical Experimentation In The Carceral State, Laura I. Appleman

Boston College Law Review

Human medical experimentation upon captive, vulnerable subjects is not a relic of our American past. It is part of our present. The extensive history of medical experimentation on the disabled, the poor, the mentally ill, and the incarcerated has been little explored. Its continuance has been even less discussed, especially in the legal literature. The standard narrative of human medical experimentation ends abruptly in the 1970s, with the uncovering of the Tuskegee syphilis study. My research shows, however, that this narrative is incorrect and incomplete. The practice of experimenting on the captive and vulnerable persists. Our current approach to human ...


Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen Jan 2020

Right-Remedy Equilibration And The Asymmetric Entrenchment Of Legal Entitlements, Michael Coenen

Boston College Law Review

Public-law litigation often gives rise to a basic but important asymmetry: claimants wishing to obtain a particular form of redress for a particular legal wrong must satisfy all the relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief. In contrast, governments wishing to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in their favor. This Article considers the extent to which this asymmetry influences the development of the law. Specifically, this Article hypothesizes that, where the remediation of a right depends on a claimant’s satisfaction of multiple, mutually necessary ...


The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy Dec 2019

The General Knowledge, Skill, And Experience Paradox, Camilla A. Hrdy

Boston College Law Review

Can employers use trade secret law to prevent employees from using knowledge and skills they acquired on the job? Courts in all fifty states say no—an employee’s general knowledge, skill, and experience cannot be protected as a trade secret. Yet a benchmark principle of trade secret law is that employers can share trade secrets with employees so long as they take reasonable measures to preserve the information’s secrecy. The result is a paradox that runs to the heart of trade secret law: employers are encouraged to communicate trade secrets to employees, but this information loses protection if ...


Shielding The "Enemy Of The People": Protecting The Reporter's Privilege In The Age Of Social Media, Ezra D. Dunkle-Polier Dec 2019

Shielding The "Enemy Of The People": Protecting The Reporter's Privilege In The Age Of Social Media, Ezra D. Dunkle-Polier

Boston College Law Review

President Donald Trump and his surrogates regularly belittle media outlets that publish articles critical of the administration. Arguably, no newsgathering practice has undergone more scrutiny from the Trump Administration than the use of unnamed sources. During this time, journalists must understand the extent to which the law will protect their reporting and their valuable anonymous sources. Almost forty years ago, the United States Supreme Court held in Branzburg v. Hayes, in 1972 that a general federal reporter’s privilege does not exist. Robust reporter shield laws exist in individual states, but these privileges largely lag behind the digital media revolution ...


Owning Geronimo But Not Elmer Mccurdy: The Unique Property Status Of Native American Remains, Alix Rogers Dec 2019

Owning Geronimo But Not Elmer Mccurdy: The Unique Property Status Of Native American Remains, Alix Rogers

Boston College Law Review

This Article unifies two areas of legal scholarship that have not historically intersected. In the fields of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property. With the passage of the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”) Native American remains are classified as familial and tribal property. In ...


Resistance Lawyering, Daniel S. Farbman Dec 2019

Resistance Lawyering, Daniel S. Farbman

Boston College Law School Faculty Papers

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were ...


An Intellectual History Of Mass Incarceration, Alice Ristroph Oct 2019

An Intellectual History Of Mass Incarceration, Alice Ristroph

Boston College Law Review

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in ...


Breaking Up Is Hard To Do: Why American Banks Remain Too Big To Fail, Logan D. Hovie Oct 2019

Breaking Up Is Hard To Do: Why American Banks Remain Too Big To Fail, Logan D. Hovie

Boston College Law Review

The 2008 Financial Crisis pushed the American economy to the brink of disaster. Fearing Great Depression-like consequences, the federal government bailed out several banks deemed “too big to fail.” During the ensuing period of reform there were frequent calls to assure that taxpayers would never again be on the hook to save an institution because of the risk its size posed to the nation’s economic health. The Dodd-Frank Act of 2010 promised to end this “too big to fail” phenomenon and increased regulatory requirements for banks. Still, in the decade after the crisis, America’s biggest banks have only ...


Dictionaries And The Law, Laurel Davis Sep 2019

Dictionaries And The Law, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2019 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit focused on the history of legal dictionaries published over the last 500 years.


Nathan Roscoe Pound And The Nazis, Peter Rees May 2019

Nathan Roscoe Pound And The Nazis, Peter Rees

Boston College Law Review

When Roscoe Pound, Dean of Harvard Law School, accepted an honorary degree from a leading German university in 1934, it was interpreted as a gesture of support for the Nazi Party. Was this a naïve misstep, or something more sinister? This Article addresses that question. It highlights previously unknown encounters between Pound and senior Nazi figures at the time, and an unusual relationship between Pound and a suspected Nazi agent that lasted throughout the Second World War, and beyond. These revelations necessarily bring into question Pound’s personal ethics and his professional responsibilities as a lawyer.


Digitizing The Brooker Collection: From Dower To The Dow, Laurel Davis Apr 2019

Digitizing The Brooker Collection: From Dower To The Dow, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2019 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit focused on the Robert E. Brooker collection of land use documents and marked the completion of a project to digitize those documents


The Lawyers Committee For Civil Rights And Economic Justice Turns Fifty—A Retrospective, Mark S. Brodin Jan 2019

The Lawyers Committee For Civil Rights And Economic Justice Turns Fifty—A Retrospective, Mark S. Brodin

Boston College Law School Faculty Papers

The year 1968 was one of the most tumultuous, and consequential, in the history of our Republic. Auspiciously, 1968 also witnessed the launch in Boston of the Lawyers’ Committee for Civil Rights. Months before his assassination, in June 1963, President John F. Kennedy convened a meeting at the White House of two-hundred and forty-four of the nation’s leading lawyers to urge them to become involved in what had emerged as a moral and legal civil rights crisis—defiant southern governors blocking the entry of black students to state universities, sheriffs brutally putting down non-violent protests with howling police dogs ...


History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette Dec 2018

History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette

Boston College Law School Faculty Papers

No abstract provided.


The "Guarantee" Clause, Ryan C. Williams Dec 2018

The "Guarantee" Clause, Ryan C. Williams

Boston College Law School Faculty Papers

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


The Constitution To The Constitution, Mary Sarah Bilder Sep 2018

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


Recent Additions To The Collection: Fall 2018, Laurel Davis Sep 2018

Recent Additions To The Collection: Fall 2018, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Fall 2018 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit focused on books and manuscripts that had been added to the collection over the previous three years.


The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder Jun 2018

The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder

Boston College Law School Faculty Papers

This article analyzes the Robert Morris library, the only known extant, antebellum, African American-owned library. The seventy-five titles, including two unique pamphlet compilations, reveal Morris’s intellectual commitment to full citizenship, equality, and participation for people of color. The article provides a model for the interpretation of lawyers' libraries.


The Ordeal And The Constitution, Mary Sarah Bilder Mar 2018

The Ordeal And The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

No abstract provided.


The James S. Rogers Collection: Examining The Past To Inform The Future, Laurel Davis, Katie Lewis Feb 2018

The James S. Rogers Collection: Examining The Past To Inform The Future, Laurel Davis, Katie Lewis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2018 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured books donated to the Rare Book Room by Professor James S. Rogers.


The Federal Equity Power, Michael T. Morley Jan 2018

The Federal Equity Power, Michael T. Morley

Boston College Law Review

Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as ...


Discovering Cases: Year Books, Reporters & Beyond, Laurel Davis Sep 2017

Discovering Cases: Year Books, Reporters & Beyond, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Fall 2017 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit explored the publishing history of legal cases from early English Year Books to the early days of the case books still used in law school classrooms.


Foreword—Forward, Zygmunt J.B. Plater Jun 2017

Foreword—Forward, Zygmunt J.B. Plater

Boston College Environmental Affairs Law Review

No abstract provided.


Robert Morris: Lawyer & Activist, Laurel Davis Feb 2017

Robert Morris: Lawyer & Activist, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2017 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit explored the life and career of Robert Morris, the second African-American lawyer in the Unites States. Materials from the John J. Burns Library at Boston College and the Boston Athenaeum were featured.


The Relevance Of Colonial Appeals To The Privy Council, Mary Sarah Bilder Nov 2016

The Relevance Of Colonial Appeals To The Privy Council, Mary Sarah Bilder

Boston College Law School Faculty Papers

For the past two centuries, the colonial appeals to the Privy Council fell between the cracks on both sides of the Atlantic. For Americans, the creation of the Supreme Court and the absence of published reports of appeals implied legal discontinuity between “American” (post-1787) law and the pre-1787 British imperial world. For the British, the loss of the Atlantic colonies and the lack of printed precedents in appeals implied legal discontinuity between English common law and the colonial appeals. Elsewhere I have written about the importance of the appeals for colonial American legal history and the history of the development ...


Don't Reinvent The Wheel: The History Of Forms In Anglo-American Legal Literature, Laurel Davis Oct 2016

Don't Reinvent The Wheel: The History Of Forms In Anglo-American Legal Literature, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2017 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit detailed the history of forms and form books used by legal practitioners beginning as early as the 12th Century.


On What Matters In Comparative Constitutional Law: A Comment On Hirschl, Katharine G. Young Jul 2016

On What Matters In Comparative Constitutional Law: A Comment On Hirschl, Katharine G. Young

Boston College Law School Faculty Papers

The field of comparative constitutional law has developed in interesting and exciting directions in recent years. This essay provides a comment on Ran Hirschl’s Comparative Matters: The Renaissance of Comparative Constitutional Law, a path-breaking example of the new methodologies that have become possible in the field. Its new boundaries, described not as comparative constitutional law, but as comparative constitutional studies, include comparative politics, political economy, and the broader social sciences. By contrast, this essay suggests that the field must remain anchored in law, in all of its complexity. This may at times suggest different answers, and indeed different questions ...


Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary Sarah Bilder Jul 2016

Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary Sarah Bilder

Boston College Law School Faculty Papers

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties ...


The One-Hundredth Anniversary Of The Federal Estate Tax: It’S Time To Renew Our Vows, Paul L. Caron May 2016

The One-Hundredth Anniversary Of The Federal Estate Tax: It’S Time To Renew Our Vows, Paul L. Caron

Boston College Law Review

The approaching one-hundredth anniversary of the federal estate tax is an opportune time to revisit its historical origins, its role in our government and society through the years, and its current and future place in our fiscal firmament. This Article argues that the reasons behind the enactment of the estate tax in 1916—to raise revenue during a time of war, enhance the progressivity of the tax system, and curb concentrations of wealth—are even more compelling in 2016. As a result, this Article argues that revitalization of the estate tax should be a central tax reform plank of the ...


Twenty Years Of Exhibits: A Rare Book Room Retrospective, Laurel Davis Apr 2016

Twenty Years Of Exhibits: A Rare Book Room Retrospective, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2016 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. This exhibit showcased the Rare Book Room's collection by looking back on twenty years of past exhibits.


Buried Beneath The Legislation It Gave Rise To: The Significance Of Woodruff V. North Bloomfield Gravel Mining Co., Kaitlin N. Vigars Feb 2016

Buried Beneath The Legislation It Gave Rise To: The Significance Of Woodruff V. North Bloomfield Gravel Mining Co., Kaitlin N. Vigars

Boston College Environmental Affairs Law Review

In the mid 1800’s, the California gold rush ushered in a new era of industry to the farming communities of the Sacramento Valley. This influx of people, capital, and technological innovation also brought with it significant pollution that nearly destroyed the agricultural value of the region. After decades of being inundated with debris cast off by the gold mining encampments operating upstream, local landowner Edward Woodruff brought suit seeking to enjoin the mining companies from discarding their debris into the area’s waterways. The decision that followed brought gold mining in the region to a halt and set the ...