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Full-Text Articles in Law

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju Jan 2010

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Boston College Law School Faculty Papers

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order ...


A Comment On "Legisprudence", Vlad F. Perju May 2009

A Comment On "Legisprudence", Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


Student Speech Rights In The Digital Age, Mary-Rose Papandrea Oct 2008

Student Speech Rights In The Digital Age, Mary-Rose Papandrea

Boston College Law School Faculty Papers

For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context – the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a ...


Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown Oct 2007

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

Boston College Law School Faculty Papers

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal ...


Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea Mar 2007

Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea

Boston College Law School Faculty Papers

The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who counts as a reporter entitled to invoke the privilege, its continued existence is in grave doubt. The accompanying Article argues that this hysteria is misplaced. The development of the internet as a new medium of communication in many ways poses the same kinds of challenges to the reporter’s privilege that courts and state legislatures have faced for decades as television reporters, radio commentators, book ...


Modern Judicial Reform In El Salvador And Brazil, Dina Bernardelli Jan 2007

Modern Judicial Reform In El Salvador And Brazil, Dina Bernardelli

Law and Justice in the Americas Working Paper Series

A comparative assessment of the successes and failures of the judicial reform efforts of El Salvador and Brazil in the 1980’s produces striking results. The reforms varied greatly in scope and were conducted in very different socio-political and economic backgrounds. While El Salvador’s reforms seemed narrow and ill-planned, on paper it appeared that Brazil’s broad reforms would be a successful model for any country with a fledgling democracy. Brazil’s reforms were an exercise in constitutionalism, implementing genuine separation of powers and receiving legislative and executive support. I was very surprised that these different approaches produced strikingly ...


The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jun 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be ...


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 ...


Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham Mar 2005

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it. Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment ...


Under Attack: The Public's Right To Know And The War On Terror, Mary-Rose Papandrea Jan 2005

Under Attack: The Public's Right To Know And The War On Terror, Mary-Rose Papandrea

Boston College Law School Faculty Papers

Since the September 11 attacks, courts have been reluctant to uphold the public’s right to obtain government information through the Freedom of Information Act and the First Amendment right of access. Given the doctrinal and statutory confusion plaguing both FOIA and the First Amendment right of access since their inception, and the judiciary’s historic tendency to defer to the Executive in matters implicating national security, recent appellate decisions rejecting right to know claims may seem unsurprising. But a closer reading of these cases reveals that the judiciary’s failure to uphold the public’s right to government transparency ...


Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom Jan 2004

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Boston College Law School Faculty Papers

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which ...


Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron Jul 2003

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron

Boston College Law School Faculty Papers

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the ...


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 ...


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 ...


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 ...


Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb Mar 1996

Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb

Boston College Law School Faculty Papers

In this Article, Professor Goldfarb examines the construction of gender roles in the discourse on intimate violence. The Article argues that this discourse assumes that male violence against female intimates represents the problems of battering in its entirety. In doing so, the discourse renders invisible the battering that occurs outside this discourse, most notably battering within same-sex relationships. The Article focuses on how the gender assumptions in the domestic violence discourse affected the representation of the Framingham Eight, a group of women who killed their batterers and were incarcerated in the women’s prison in Framingham, Massachusetts. These women petitioned ...


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 ...


Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller Jun 1988

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Boston College Law School Faculty Papers

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and ...


The Concept Of Person In The Law, Charles H. Baron Apr 1985

The Concept Of Person In The Law, Charles H. Baron

Boston College Law School Faculty Papers

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by having ...