Boston College law review. Boston College. Law School最新文献

{"title":"(What We Talk About When We Talk About) Judicial Temperament","authors":"T. Maroney","doi":"10.2139/ssrn.3517559","DOIUrl":"https://doi.org/10.2139/ssrn.3517559","url":null,"abstract":"Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need a common vocabulary to guide our discourse on judicial temperament. \u0000 \u0000This Article—the first extended scholarly treatment of the topic—posits that, because judicial temperament is a psychological construct, we ought to draw upon psychology to understand it. It therefore taps a deep well of scientific research to construct a new psycho-legal theory of judicial temperament. It conceives judicial temperament as a deep-seated, relatively stable set of specific personal traits—separable from intellect, training, and ideology—that, in dialectic with specific judicial environments and the predictable demands of judging, drive behaviors that affect how justice is delivered and perceived. The critical trait dimensions of a judge’s temperament are positive emotionality, negative emotionality, kindness, and self-regulation. The combination of these traits determines how well or poorly her temperament will fit with any given judicial assignment. Although judicial temperament is somewhat malleable, potential for change is constrained. This scientifically grounded theory shows why some seldom-mentioned attributes—like courage—are temperamental, and other commonly-cited ones—such as commitments to equality and diversity—are not. This Article provides a principled alternative to the folk-wisdom manner in which judicial temperament traditionally has been defined and assessed. Setting the theoretical terms for empirical testing of its claims—and with the potential to transform processes for judicial selection, evaluation, and support—the psycho-legal theory posited here shows what we should be talking about when we talk about judicial temperament.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"61 1","pages":"2085"},"PeriodicalIF":0.0,"publicationDate":"2020-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46911429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program's Impact on Appellate Reversal Rates at the Five-Year Mark","authors":"Amy E. Semet","doi":"10.2139/ssrn.3130363","DOIUrl":"https://doi.org/10.2139/ssrn.3130363","url":null,"abstract":"Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen select district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal of pilot judges by the Federal Circuit? This Article analyzes trial court patent cases filed from September 2011 through September 2016, focusing specifically on whether the appellate treatment of cases heard by district court judges participating in the pilot program differs from the treatment of cases heard by non-pilot judges. Of the several hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, the results indicate that, even controlling for other factors, the Federal Circuit does not overrule non-pilot judges more than pilot judges. After discussing the empirical results, the Article proposes suggestions for reform.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"60 1","pages":"519"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68565199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Death Penalty & The Fundamental Right to Life","authors":"K. Barry","doi":"10.2139/SSRN.3287213","DOIUrl":"https://doi.org/10.2139/SSRN.3287213","url":null,"abstract":"For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment. But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process. The legal literature has followed suit, scarcely addressing the issue. \u0000 \u0000This Article makes the case for why the death penalty violates the fundamental right to life. It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government. It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution: arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring. Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights. \u0000 \u0000Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon. The road less traveled is substantive due process: the right to life of the condemned. On the long road toward abolition, this Article argues that two lanes are better than one.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"60 1","pages":"1545"},"PeriodicalIF":0.0,"publicationDate":"2018-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3287213","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48833283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The SEC and Foreign Private Issuers: A Path to Optimal Public Enforcement","authors":"Yuliya Guseva","doi":"10.2139/SSRN.2989297","DOIUrl":"https://doi.org/10.2139/SSRN.2989297","url":null,"abstract":"This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the anti-fraud provisions of the U.S. securities law. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of private class actions against foreign corporations, how should the SEC adjust its enforcement strategy? To answer this question, this Article presents an empirical survey of SEC enforcement actions against foreign issuers between 2005 and 2016. The results suggest that the SEC consistently pursues a lenient enforcement approach in this area. This low-key policy is the Commission’s dominant strategy. The Article also discusses post-Morrison doctrinal developments, market trends, and red flags potentially indicative of an increased risk of fraud. Although the traditional low-key enforcement policy may attract some foreign “lemons” in the post-Morrison environment, the SEC should not depart from its dominant strategy and engage in more enforcement actions. Instead, the warning signs identified in this paper call for better preventive monitoring. The Article suggests a number of low-cost fraud prevention policies, including promoting cooperation with foreign firms, using new data analysis programs, and galvanizing market “gatekeepers.” Through implementing the mechanisms suggested in this Article, the SEC may reach a more efficient level of deterrence without ramping up enforcement and increasing the costs of foreign firms seeking to access American capital markets.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"2055"},"PeriodicalIF":0.0,"publicationDate":"2018-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44459889","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fair Use Avoidance in Music Cases","authors":"Edward Lee","doi":"10.2139/SSRN.3232783","DOIUrl":"https://doi.org/10.2139/SSRN.3232783","url":null,"abstract":"This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even considered fair use. This Article attempts to explain this fair use avoidance and to evaluate its costs and benefits. Whether the lack of a clear precedent recognizing music fair use has harmed the creation of music is inconclusive. A potential problem of “copyright clutter” may arise, however, from the buildup of copyrights to older, unutilized, and underutilized musical works. This copyright clutter may subject short combinations of notes contained in older songs to copyright assertions, particularly after the U.S. Supreme Court’s rejection of laches as a defense to copyright infringement. Such a prospect of copyright clutter makes the need for a clear fair use precedent for musical works more pressing.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"1873-1931"},"PeriodicalIF":0.0,"publicationDate":"2018-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44289892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Property, Concepts, and Functions","authors":"Eric R. Claeys","doi":"10.2139/SSRN.3136041","DOIUrl":"https://doi.org/10.2139/SSRN.3136041","url":null,"abstract":"This article makes two suggestions for ongoing debates about property concepts. First, these debates have focused too much on concepts for ownership; they have neglected concepts that cover property rights weaker than rights of ownership but still robust enough to constitute rights in relation to ownable resources. Second, these same debates have neglected the roles that artifact functions might play in property concepts. Property rights are artifacts, and functions play crucial roles in artifacts and the concepts that represent them. The Article confirms both suggestions via a close study of one particular property concept. That concept is prominent in Anglo-American property common law. In that concept’s focal sense, a property right refers to: an immunized and in rem claim-right; given institutional status in law and social morality; in relation to a separable resource; to facilitate the beneficial use of that resource and other resources commonly proximate to it. This concept gets its structure from a function, the imperative that property rights be structured to serve different people’s correlative interests in using resources for rational well-being. This concept explains why the field of property rights covers not only rights of sole ownership but also nonpossessory rights and rights in concurrent estates. To illustrate, the Article studies: legal interests in tenancies in common; easements; revocable licenses; mortgages; covenants running with the land; riparian rights; and appropriative rights and appurtenant ditch easements.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"60 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2018-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44391820","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Discriminatory Job Knowledge Tests, Police Promotions, and What Title VII Can Learn from Tort Law","authors":"M. Brodin","doi":"10.2139/SSRN.3132391","DOIUrl":"https://doi.org/10.2139/SSRN.3132391","url":null,"abstract":"Selection devices in use by police departments around the nation have stifled advancement for a disproportionate number of otherwise qualified minority candidates, and hindered the desired diversification of the upper ranks. Favoring the skill of memorization of police manuals, these exams have little to do with predicting success as a sergeant or other police supervisor. Yet inertia as well as other forces have kept them in place for decades. The traditional Title VII approach, a disparate impact challenge, has proven unsatisfactory given the relative ease with which the exams can be \"content validated\" in court. \u0000This article proposes a new approach familiar to tort lawyers - the inference of intent from actions taken with foreseeable or inevitable consequences. When a police agency routinely administers multiple-choice exams, fully aware of the exclusionary impact on minorities, that result can no longer be deemed \"unintentional,\" and the matter should thus be treated as disparate treatment, with all the advantageous liability and remedial consequences that would follow. \u0000The U.S. Department of Justice has harshly criticized police departments in Ferguson, Chicago, Baltimore, and elsewhere following incidents of police killings of unarmed civilians. Each report points to poor supervision of line officers, and lack of diversity in supervisory positions, as major contributing factors. Title VII of the Civil Rights Act of 1964, landmark legislation designed to open employment opportunities to minorities and women, is uniquely positioned to address the problem. But to do so, courts must disentangle these litigations from the hyper-technical world of test validation, and instead apply a commonsense definition of intentional discrimination applied in tort litigation.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"2319"},"PeriodicalIF":0.0,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44654278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions","authors":"S. Barclay, Mark L. Rienzi","doi":"10.2139/SSRN.3079777","DOIUrl":"https://doi.org/10.2139/SSRN.3079777","url":null,"abstract":"In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will result in a tidal wave of religious claimants striking down government action. Our Article presents an observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenges offered as a default remedy elsewhere in constitutional adjudication. Courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise. The Article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"35 1","pages":"1595"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3079777","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68548908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should Investment Treaties Contain Public Policy Exceptions","authors":"Caroline Henckels","doi":"10.2139/ssrn.3209902","DOIUrl":"https://doi.org/10.2139/ssrn.3209902","url":null,"abstract":"The increasing inclusion of exceptions in newly concluded investment treaties, together with the divergent manner in which tribunals and annulment committees have approached these provisions, suggests that a greater understanding of their role and purpose is needed. In particular, the question whether exceptions operate as permissions or as defenses is a crucial but unaddressed issue that has significant implications for both litigation and practice and, in turn, implications for the stability of the regime. This paper argues that as a starting point, exceptions should be understood as permissions that limit the scope of the substantive treaty obligations, and not as defenses invoked to justify prima facie unlawful conduct. Understanding exceptions as permissions has several advantages, including the avoidance of double-counting a government’s motivation for its conduct or, more problematically, failing to take regulatory purpose into account when determining whether a government has complied with the treaty’s substantive obligations. Understanding exceptions as permissions sends signals to adjudicators in relation to issues such as the appropriate standard of review. The paper also explores the desirability of including exceptions in treaties in light of recent innovations that clarify the substantive content of investment obligations. Although the uncertain analytic character of existing exceptions risks constraining rather than preserving regulatory space, hey may be an important failsafe in light of current institutional arrangements for investor-state dispute settlement, which effectively preclude review for error of law. The paper concludes that the relationship between standards of investment protection and exceptions needs further consideration, and suggests that states negotiating investment treaties ought to take a step back and more holistically consider the aims of the regime and the role of exceptions therein.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"2825-2844"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.3209902","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68574733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Closing the Regulatory Gap for Synthetic Nicotine Products.","authors":"Patricia J Zettler,&nbsp;Natalie Hemmerich,&nbsp;Micah L Berman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In July 2017 the U.S. Food and Drug Administration (FDA) announced a new \"comprehensive plan for tobacco and nicotine regulation.\" This plan is focused on making cigarettes less addictive while facilitating the development of alternative, and less-harmful, nicotine-containing products. This approach holds promise, and the public health stakes could not be higher-smoking is the leading cause of preventable death in the United States, resulting in roughly 480,000 deaths per year. But a new consumer product is emerging that could upset the FDA's plans for a well-balanced regulatory scheme: synthetic nicotine. These products currently fall into a regulatory gap because they fall outside the Federal Food, Drug, and Cosmetic Act's (FDCA) definition of a tobacco product. If this gap remains in place, it is likely that more companies will exploit it in order to evade regulation, undoing the potential benefits of the FDA's plan for tobacco and nicotine regulation. This Article argues that the FDA can, and should, address this problem by regulating synthetic nicotine products as drugs. After reviewing the science of nicotine addiction and the FDA's past and present regulatory schemes for nicotine, it explains how the FDA could establish that synthetic nicotine products satisfy the FDCA's definition of a drug. It concludes with a discussion of the policy benefits of categorizing synthetic nicotine products as drugs.</p>","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 6","pages":"1933-1982"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6329380/pdf/nihms960307.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36901168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}