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Full-Text Articles in Law

Interagency Coordination On Labor Regulation, Hiba Hafiz Aug 2021

Interagency Coordination On Labor Regulation, Hiba Hafiz

Boston College Law School Faculty Papers

After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or ...


The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu Jun 2021

The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu

Boston College Law School Faculty Papers

This Essay contends that segments of public interest law often get a pass on questions of race because it is a field of law that is genuinely concerned with marginalized communities. But the historical record, the dearth of empirical data on race, the homogeneity of the legal profession, and the recognition that no one is necessarily immune from racial biases all demand that the public interest bar reckon with its racial character. The racial oversights of public interest law can manifest themselves in hiring, staffing, organizational mission, leadership, and the actual delivery of legal services. We argue that a racial ...


Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2021-0006, Patricia Mccoy May 2021

Comment Of Professor Patricia A. Mccoy On Docket No. Cfpb-2021-0006, Patricia Mccoy

Boston College Law School Faculty Papers

In this comment Professor McCoy responds to a proposed rule on protections for borrowers affected by the Covid-19 emergency under RESPA and Regulation X from the Consumer Financial Protection Bureau.


Othering Across Borders, Steven Arrigg Koh May 2021

Othering Across Borders, Steven Arrigg Koh

Boston College Law School Faculty Papers

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.


Examining Executive Authority During Public Health Emergencies: Challenges To Covid-19 Executive Orders & Implications For Future Public Health Policy, Rachael Wyant May 2021

Examining Executive Authority During Public Health Emergencies: Challenges To Covid-19 Executive Orders & Implications For Future Public Health Policy, Rachael Wyant

Rappaport Center for Law and Public Policy Papers

Two months after the first cases of COVID-19 were detected in Wuhan, China, state governments faced the threat of an unprecedented public health emergency caused by an unknown pathogen, and uncertainty about the efficacy of containment measures. After the WHO announced that COVID-19 had become a pandemic, the Trump Administration declared a National Emergency and issued a travel ban on March 13, 2020. Subsequently, counties in New York and Washington began issuing stay-at-home orders, followed by California’s state wide order. Deriving authority from state emergency management and public health statutes, governors have relied heavily on executive orders and emergency ...


The Balance Between Transparency, Efficiency, And Privacy Protection: Keeping Student And School Employee Information Safe Without Limiting The Public's Right To Know, Kristen Rosa May 2021

The Balance Between Transparency, Efficiency, And Privacy Protection: Keeping Student And School Employee Information Safe Without Limiting The Public's Right To Know, Kristen Rosa

Rappaport Center for Law and Public Policy Papers

There are two rights an educational entity must weigh in response to a public request for information: the public’s right to know, and the right to privacy of both students and education agency employees. For public records requests, educational entities must ground their approach not only in the federal and state laws that shape public right to public agency information, but also in an understanding of what is known as derivative disclosure: how the context of a provided record can lead to inference of a student or employee’s identity alongside other information about them that should have been ...


Inspectors General And The Importance Of Independence, Kristopher Phipps May 2021

Inspectors General And The Importance Of Independence, Kristopher Phipps

Rappaport Center for Law and Public Policy Papers

Amidst a global pandemic, President Donald Trump removed five inspectors general within the federal government, including the inspector general in charge of overseeing the coronavirus response efforts in health agencies and the inspector general directly involved with the whistleblower complaint that led to Trump’s impeachment. The President’s unprecedented actions against government oversight officials calls attention to an otherwise little-noticed institution and signals a growing need for accountability in government on all levels.

Independence is critical to the success of an inspector general in the performance of their statutory duties. Those duties are compromised, however, when the authority that ...


Fcc Process Reforms Protect The Rule Of Law, Daniel A. Lyons Apr 2021

Fcc Process Reforms Protect The Rule Of Law, Daniel A. Lyons

Boston College Law School Faculty Papers

On the eve of independence, John Adams famously argued that ours should be “a government of laws and not of men.” This warning should echo even more loudly through our current era, when the administrative state has eroded many of the structural safeguards designed to protect the rule of law. Strict judicial enforcement of the separation of powers and nondelegation has yielded to our faith in expert agencies to make important governance decisions. This tradeoff may be, in the Supreme Court’s words, a necessary concession to an “increasingly complex society.” But it highlights the importance of internal safeguards designed ...


Between Code And Treatise: The Hard Challenge Of The Restatement Of Copyright, Joseph P. Liu Apr 2021

Between Code And Treatise: The Hard Challenge Of The Restatement Of Copyright, Joseph P. Liu

Boston College Law School Faculty Papers

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of law governed by a comprehensive federal statute? In this Response, I suggest that, while the existence of a comprehensive federal statute is an important difference between the Restatement of Copyright and common law restatements, an equally important and underappreciated difference is the existence in copyright of an institutional body that is the authoritative interpreter of that statute: the U.S. Supreme Court. Unlike a common law restatement, the Restatement of Copyright must ...


Learning From Omar: The Case For Public Funding Of Postconviction Innocence Defense, Sharon Beckman Apr 2021

Learning From Omar: The Case For Public Funding Of Postconviction Innocence Defense, Sharon Beckman

Boston College Law School Faculty Papers

In 2020, the Boston College Innocence Program secured the exoneration of clients Frances Choy and Ronnie Qualls and the release of a third client pending further litigation. The program has also made significant contributions to law and practice reform efforts. The Boston Bar Journal asked BCIP’s Director, Boston College Law Professor Sharon Beckman, to comment on what is behind the program’s success and to share a lesson learned in her clinic.


Mergers, Macs, And Covid-19, Brian Jm Quinn Apr 2021

Mergers, Macs, And Covid-19, Brian Jm Quinn

Boston College Law School Faculty Papers

The conventional wisdom is that MAE/MACs in merger agreements provide an opportunity for buyers to renegotiate merger agreements in the event of intervening adverse events. However, the experience following the COVID-19 outbreak suggests that the conventional wisdom is incorrect or at least overstated. In fact, MAE/MACs shift the risk of exogenous adverse events (like COVID-19) to buyers while leaving only the risks of adverse endogenous and semi-endogenous events with the seller. The consequence of this risk-shifting is to strictly limit the circumstances under which a buyer can credibly lean on a MAE/MAC to threaten to terminate a ...


The New Managerialism: Courts, Positive Duties, And Economic And Social Rights, Katharine G. Young Apr 2021

The New Managerialism: Courts, Positive Duties, And Economic And Social Rights, Katharine G. Young

Boston College Law School Faculty Papers

An inseparable component of liberal constitutionalism is the respect accorded to so-called negative rights, which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure rights, by actively and effectively planning, regulating, budgeting, and monitoring. These positive duties are particularly pronounced for so-called positive rights, which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just ...


The Canons Of Social And Economic Rights, Katharine G. Young Apr 2021

The Canons Of Social And Economic Rights, Katharine G. Young

Boston College Law School Faculty Papers

Social and economic rights occupy an unsettled place in any global canon of constitutional democracy and human rights. This Article, appearing in a collection of Global Canons in an Age of Uncertainty (S. Choudhry, M. Hailbronner & M. Kumm, eds., OUP) recommends a contender for canonical status, at the same time as it problematizes the search. Insofar as the search for a canon reveals the boundaries of what may be considered exemplary claims of constitutional and democratic practice, the 2000 South African case of Republic of South Africa v. Grootboom is canonical for its treatment of social and economic rights. This ...


Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker Apr 2021

Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker

Boston College Law School Faculty Papers

This Article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where ...


Without Doors: Native Nations And The Convention, Mary Sarah Bilder Apr 2021

Without Doors: Native Nations And The Convention, Mary Sarah Bilder

Boston College Law School Faculty Papers

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the ...


Corporate Personhood And The Putative First Amendment Right To Discriminate, Kent Greenfield, Daniel A. Rubens Apr 2021

Corporate Personhood And The Putative First Amendment Right To Discriminate, Kent Greenfield, Daniel A. Rubens

Boston College Law School Faculty Papers

Corporations increasingly assert the right to discriminate, based either on free speech claims, religious freedom claims, or statutory claims arising from the Religious Freedom Restoration Act. Such claims have been considered by the Supreme Court in Hobby Lobby (RFRA) and Masterpiece Cakeshop (First Amendment), and in both cases the Court held in favor of the business.

In neither case, however, did the Court address a fundamental flaw with the arguments of the company asserting the speech and religion claims: that the claims depend on the rejection of corporate personhood. The putative religious and speech claims arose not from the beliefs ...


Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ray D. Madoff, Ellen P. Aprill, Roger Colinvaux, Sean Delaney, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Jill S. Manny, Nancy A. Mclaughlin, Richard Shmalbeck Mar 2021

Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ray D. Madoff, Ellen P. Aprill, Roger Colinvaux, Sean Delaney, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Jill S. Manny, Nancy A. Mclaughlin, Richard Shmalbeck

Boston College Law School Faculty Papers

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.


Herding Cats: Building Student Engagement In Remote Learning In The U.S. And Uzbekistan, E. Joan Blum Mar 2021

Herding Cats: Building Student Engagement In Remote Learning In The U.S. And Uzbekistan, E. Joan Blum

Boston College Law School Faculty Papers

Reflecting on the experience of faculty at Boston College Law School and Tashkent State University of Law in Uzbekistan during the early months of the covid-19 pandemic, this essay discusses how law teachers can promote student engagement in remote learning by adapting classroom assessment techniques, or CATs, to the remote learning environment. Originally promoted in a 1988 book by Thomas A. Angelo and K. Patricia Cross as tools “to help teachers find out what students are learning in the classroom and how well they are learning it,” CATs are well-designed and well-tested in-class activities that require students to interact with ...


Structural Labor Rights, Hiba Hafiz Feb 2021

Structural Labor Rights, Hiba Hafiz

Boston College Law School Faculty Papers

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression—the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law ...


The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder Feb 2021

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Boston College Law School Faculty Papers

In written celebration of Kent Newmyer’s intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging ...


Law In Time: Legal Theory And Legal History, Paulo D. Barrozo Feb 2021

Law In Time: Legal Theory And Legal History, Paulo D. Barrozo

Boston College Law School Faculty Papers

Over a long period, simple societies achieved social stability as social stasis through normative inertia. Conversely, high-complexity societies achieve social stability as constant functional adaptation and axiological responsiveness through small quotidian and large occasional normative changes. To understand this is to begin to understand the question of law in time.

This article outlines a theory of the nature and evolution of law that accounts for the way law operates over time to produce sociological stability out of a normative order. The theory is then presented as an extended argument about why legal history, especially of the grand narrative type, should ...


Disease, Distribution And Race In The Time Of Covid-19, Katharine Young Feb 2021

Disease, Distribution And Race In The Time Of Covid-19, Katharine Young

Boston College Law School Faculty Papers

The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as ...


The Mind Is Like A Bat: Bernard Bailyn And The Debate On The Constitution, Mary Sarah Bilder Jan 2021

The Mind Is Like A Bat: Bernard Bailyn And The Debate On The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

After Donald Trump’s election, Bernard Bailyn pondered the relevance of the debate on the Constitution to contemporary politics. As Bailyn wrote, the founders knew how the “debasement of free states” happened. In 2018, he perceived the constitutional system “tested as never before.” The founders worried about “a charismatic demagogue” who would “cut through or ignore or distort the structure of law, install his corrupt minions in high office, protect them by use of the pardoning power.” Repeatedly these fears had appeared in the debate on the Constitution. Bailyn ended by quoting James Madison’s 1796 comment stressing the importance ...


Caracter, Credibility, And Rape Shield Rules, R. Michael Cassidy Jan 2021

Caracter, Credibility, And Rape Shield Rules, R. Michael Cassidy

Boston College Law School Faculty Papers

Rape shield laws have played an important role in protecting complainants and jurors from some of the most pernicious and ill-founded assumptions about sexual autonomy and consent. Yet the development and application of these rules have left many thorny questions. The policy debate has now shifted from whether and how the accuser's prior sexual conduct should be admitted to prove consent or lack of credibility due to what was once termed "unchastity" (now universally condemned and rightly prohibited) to whether and how the accuser's prior sexual conduct should be admitted to support a more specific and logically relevant ...


The 2021 Corporate Transparency Act: The Next Frontier Of U.S. Tax Transparency And Data Debates, Diane Ring Jan 2021

The 2021 Corporate Transparency Act: The Next Frontier Of U.S. Tax Transparency And Data Debates, Diane Ring

Boston College Law School Faculty Papers

As we enter the third decade of the twenty-first century, twin revolutions—one in digital data, the other in international tax—are well underway. Both are global phenomena with independent momentum, but in practice they intersect and often find themselves in tension. Increasingly pervasive digital data has prompted major debates over privacy, artificial intelligence, government overreach, and digital crime. The past year has witnessed growing concern and litigation regarding expanded data collection and use in both the private and public sectors, with the COVID-19 pandemic igniting clashes between public health and privacy. At the same time, international tax trends have ...


Taking Liberty Decisions Away From "Imitation" Judges, Mary Holper Jan 2021

Taking Liberty Decisions Away From "Imitation" Judges, Mary Holper

Boston College Law School Faculty Papers

Justice Black warned in 1952 about the dangers of giving immigration police and prosecutors the authority to jail human beings with very little involvement by the judiciary. Today’s immigration detention machine illustrates Justice Black’s fears: U.S. Department of Homeland Security (“DHS”) agents have both arrested 182,869 people in a single year and decided whether those individuals will be released or remain incarcerated for the remainder of their removal proceedings. For those entitled to immigration judge review, the judge works for the Department of Justice (“DOJ”) under the supervision of the Attorney General, the nation’s top ...


Comparative Law As A Way Of Life: For William P. Alford, Paulo Barrozo Dec 2020

Comparative Law As A Way Of Life: For William P. Alford, Paulo Barrozo

Boston College Law School Faculty Papers

Comparative law presents high order ontological, causal, and epistemological difficulties. Those difficulties come to a head in the design of comparative methods. Indeed, the spatial, temporal and cultural range of the legal phenomenon in all its elements – such as types of legal thinking and discourse, constitutional essentials, infraconstitutional institutions or the meaning-orientation and attitudes of legal agents – often strain the methods of comparative law to a point of rupture.

William P. Alford makes enduring contributions to comparative methods. In particular, this essay focuses on lessons contained in his early work about the limits and possibilities of theoretical approaches to comparative ...


Core Criminal Procedure, Steven Arrigg Koh Nov 2020

Core Criminal Procedure, Steven Arrigg Koh

Boston College Law School Faculty Papers

Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises ...


The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young Nov 2020

The Idea Of A Human Rights-Based Economic Recovery After Covid-19, Katharine G. Young

Boston College Law School Faculty Papers

The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This Article argues that the human rights to life, health, education, social security, housing, food, water and sanitation – the so-called economic and social rights – are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect ...


Defending Bridgegate, George D. Brown Oct 2020

Defending Bridgegate, George D. Brown

Boston College Law School Faculty Papers

The Supreme Court’s decision in the “Bridgegate” controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision’s potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.