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

{"title":"Reed v. Town of Gilbert: Relax, Everybody","authors":"Enrique Armijo","doi":"10.2139/SSRN.2753865","DOIUrl":"https://doi.org/10.2139/SSRN.2753865","url":null,"abstract":"In Reed v. Town of Gilbert, the Supreme Court held that a law is content based if it draws distinctions on its face based on the message an affected speaker conveys. Reed rejected previous lower court interpretations of the Court’s content discrimination doctrine, which had consistently held that a content-based law was not subject to strict scrutiny if its reference to content was not based on government disapproval of that content.Reed has set off a firestorm. The Justices who concurred in the judgment warned that the case’s rule would cast doubt on a range of government action historically considered to not implicate the First Amendment, from securities regulation to product labeling. Commentators have called Reed everything from a “groundbreaker” to a “redefinition” of content discrimination doctrine that will have “profound consequences.”The message of this Article is that Reed’s critics should, in a word, relax. Close review of those areas in which Reed’s critics claim the case will cause the most harm demonstrates that other parts of First Amendment doctrine, all of which survive Reed, will limit the case’s reach. The case also clarified several murky areas of First Amendment doctrine. And the focus on Reed obscures a far more important issue: the fallacy of continuing to use a categorical approach to First Amendment cases that turns entirely on whether or not a given law refers to content and ignores a law’s actual effect on speech.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"65"},"PeriodicalIF":0.0,"publicationDate":"2016-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68290473","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":"Beyond Campaign Finance Reform","authors":"Tabatha Abu El-Haj","doi":"10.2139/ssrn.2729976","DOIUrl":"https://doi.org/10.2139/ssrn.2729976","url":null,"abstract":"While the public blames the United States Supreme Court’s decision in Citizens United v. FEC for the outsized political influence of the superwealthy, experts in the field know that the constitutional constraints on our ability to limit the political influence of moneyed elites long-predate Citizens United and pose a formidable barrier to effective campaign finance reform. Nevertheless, the most consistent calls in legal circles are for yet more campaign finance reform. This Article argues that it is time for those serious about curtailing the influence of money in politics to recognize that the struggle for effective campaign finance reforms has run its course. Renewed democratic accountability requires an organized, informed, and representative electorate. The field of election law must, therefore, come to grips with the evidence that the apparent crisis of representation is attributable to profound social and political changes since the 1970s, foremost among them, a transformation of civic associations critically linked to legal choices. While increasing the representativeness of the electorate that turns out to vote must remain a key priority for the field, it is time to attend to the ways that law might encourage civic reorganization — just getting voters out on election days is too little too late. In making this argument, this Article defends two controversial claims: First, the First Amendment tradition poses a formidable barrier to curtailing the influence of moneyed interests regardless of the composition of the Supreme Court. Second, the widespread skepticism in the field that the electorate can be a source of democratic accountability is overstated: The fact that voters, as individuals, are incapable of monitoring elected officials does not foreclose the possibility that voters, as groups, could demand democratic responsiveness. In fact, the historical record reveals that ordinary citizens can exercise influence over the officials elected to represent them when they are well organized and vote.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68277548","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 Lawyer as Public Figure for First Amendment Purposes","authors":"Alex Long","doi":"10.2139/SSRN.2724880","DOIUrl":"https://doi.org/10.2139/SSRN.2724880","url":null,"abstract":"Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can also see more clearly some of the complexities the legal profession now faces and the sometimes uncertain nature of its role.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"57 1","pages":"1543"},"PeriodicalIF":0.0,"publicationDate":"2016-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68275174","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":"Health Care and the Myth of Self-Reliance","authors":"Nicole Huberfeld, Jessica Roberts","doi":"10.2139/SSRN.2647808","DOIUrl":"https://doi.org/10.2139/SSRN.2647808","url":null,"abstract":"Both pillars of the Affordable Care Act that are designed to facilitate universal coverage — the low-income tax subsidy and Medicaid expansion — have been subject to high-profile Supreme Court cases. While in King v. Burwell the Court saved the ACA’s low-income subsidy, in NFIB v. Sebelius the Court frustrated Medicaid expansion, at least temporarily. We argue that there is a deeper story about health care access for the poor. Drawing from the history of the American health care system, vulnerability theory, and demographic data, we demonstrate that all Americans lead subsidized lives and could find themselves quickly moving from the private to the public system. We contend that the apparent political preference for private, or “hidden,” government assistance over public, or “visible,” government assistance has its roots in the American myth of self-reliance. Our analysis debunks this myth and reveals that the line between hidden and visible government assistance fails both theoretically and empirically. We conclude that a single government program for the poor would be more economically and administratively efficient.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"57 1","pages":"1-60"},"PeriodicalIF":0.0,"publicationDate":"2016-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2647808","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238464","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":"Crystal structure of benz-yl(meth-yl)phen-yl[(piperidin-1-ium-1-yl)meth-yl]silane bromide.","authors":"Eva Rebecca Barth, Christopher Golz, Stephan G Koller, Carsten Strohmann","doi":"10.1107/S2056989015016965","DOIUrl":"10.1107/S2056989015016965","url":null,"abstract":"<p><p>The title compound, C20H29NSi(+)·Br(-), contains a chiral silicon atom but crystallizes as a racemate. The C-Si-C bond angles in the range of 103.64 (8)-111.59 (9)° are usual for tetra-hedral geometry. The piperidine ring shows a regular chair conformation with an equatorially positioned exocyclic N-C bond. In the crystal, there is a hydrogen bond between the ammonium cation and the bromide anion. The crystal packing shows the dominant inter-molecular inter-action to be the electrostatic attraction between the ammonium cation and the bromide anion. </p>","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"60 1","pages":"o759"},"PeriodicalIF":0.0,"publicationDate":"2015-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4647413/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"62134971","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}

{"title":"Fear and Loathing in Colorado: Invoking the Supreme Court's State-Controversy Jurisdiction to Challenge the Marijuana-Legalization Experiment","authors":"Chad Deveaux, Anne Mostad-Jensen","doi":"10.2139/SSRN.2540640","DOIUrl":"https://doi.org/10.2139/SSRN.2540640","url":null,"abstract":"In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge marijuana legalization in Colorado and other jurisdictions. The Constitution endows the Court with jurisdiction to adjudicate transboundary nuisance disputes between States. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically following passage of the Clean Air and Water Acts, which relieved the Court of its historic role of establishing and enforcing interstate environmental standards. Colorado’s introduction of marijuana into interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream industrial pollution, the transboundary externalities resulting from Colorado’s introduction of marijuana into interstate commerce fall within the ambit of the Court’s original jurisdiction. In making this argument, we distinguish our theory from the Complaint lodged by Nebraska and Oklahoma with the Supreme Court. Rather than premising their claim on the Court’s transboundary nuisance jurisprudence, Nebraska and Oklahoma seek to “enforce...the Supremacy Clause, Article VI of the U.S. Constitution.” They contend that Colorado’s venture violates the federal Controlled Substances Act and should be enjoined. Their federal-supremacy claim suffers from a myriad of fatal deficiencies: they lack standing to represent the federal government’s interests, they have not plead injury with the particularity required to invoke the Court’s original jurisdiction, and their prayer for injunctive relief runs afoul of the anti-commandeering doctrine. In contrast, we assert that the Court should award damages to a prevailing State, using the Coase Theorem as its guide. The Theorem states that if transaction costs are eliminated “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the theorem is attained by imposing legal rules that best approximate the way disputes would be resolved in a transaction-cost-free environment. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient. If this remedy is applied, the market will determine the success or failure of Colorado’s venture and will serve as a guide to other states in deciding whether it is worth emulating.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"56 1","pages":"1829"},"PeriodicalIF":0.0,"publicationDate":"2014-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197741","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":"Making Do in Making Drugs: Innovation Policy and Pharmaceutical Manufacturing","authors":"W. N. Price Ii","doi":"10.2139/ssrn.2311682","DOIUrl":"https://doi.org/10.2139/ssrn.2311682","url":null,"abstract":"Drug recalls, contamination events, and shortages are on the rise, but drug companies still rely on decades-old manufacturing plants and processes. Contrary to widespread perceptions, drug manufacturing is typically expensive, inefficient, and non-innovative. Drug companies spend much more on manufacturing than on research and development, but the industry lags far behind the innovative manufacturing found in other industries. This lack of innovation in drug manufacturing stands in stark contrast to the innovation present in drug discovery. Drug discovery is the focus of a calibrated innovation policy that combines patents and the regulatory regime. Manufacturing lacks such attention, and the costs are great, both in dollars and in human lives. This article addresses the previously underappreciated role of manufacturing in innovation studies and policy. The stagnation of pharmaceutical manufacturing results from regulatory barriers and ineffective intellectual-property incentives. As a result of the difficulty enforcing manufacturing process patents, manufacturers tend to rely on trade secrecy instead, which reduces innovation. Making matters worse, regulation actively impedes innovative changes to manufacturing methods through substantive and procedural barriers across the lifespan of a drug. To address these challenges, this article suggests several direct regulatory reforms. It also proposes novel ways that regulation can be used to change the function of intellectual property incentives, which fit particularly well in the drug manufacturing context but could be extended to different areas of innovation policy. For example, FDA could be charged with operating a system of temporary market exclusivity for manufacturing innovation parallel to the patent system. Alternately, FDA could require disclosure of manufacturing methods to drive the industry from opacity and trade secrecy towards transparency and patent protection for innovation. A better targeted and more effective innovation policy could improve the current sad state of drug manufacturing with potentially immense economic and health benefits.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2311682","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68092136","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":"Don't Stop the Clock: Why Equitable Tolling Should Not Be Read into the Hague Convention on International Child Abduction","authors":"N. Fontaine","doi":"10.2139/SSRN.2337984","DOIUrl":"https://doi.org/10.2139/SSRN.2337984","url":null,"abstract":"Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction allows an abducting parent to avoid return of the child if they can show that more than a year has passed since the wrongful removal or retention, and that the child is well-settled in their new environment. In cases where concealment of the abducted child prevented filing within the one-year period, the Eleventh and Ninth Circuits have applied equitable tolling to delay the start of the one year. In October 2012, the Second Circuit became the first circuit court to reject equitable tolling in Lozano v. Alvarez. The First Circuit quickly followed suit in September 2013 in Yaman v. Yaman. The Supreme Court will hear arguments this issue in December 2013. The application of equitable tolling lacks support in the text, drafting history, and underlying purposes of the Convention. This Note then argues that the Eleventh and Ninth Circuits improperly emphasized the rights of the parent because of an American legal tradition of prioritizing parental rights over children’s rights and interests. Ultimately, this Note recommends that the Supreme Court reject equitable tolling and instead push courts to reach the well-settled defense, which follows the text of the Convention, achieves its underlying goals by focusing on children’s interests, and will still serve to deter child abductions.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"54 1","pages":"2091"},"PeriodicalIF":0.0,"publicationDate":"2013-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68118067","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":"Throwing Admiralty Jurisdiction a Life Vest: Preserving Jurisdiction for Maritime Torts that Do Not Involve Vessels","authors":"M. Thoele","doi":"10.2139/SSRN.2292813","DOIUrl":"https://doi.org/10.2139/SSRN.2292813","url":null,"abstract":"Admiralty jurisdiction was created to protect maritime commerce and other traditional maritime activities. To adequately protect maritime commerce and other traditional maritime activities, torts occurring on navigable waters that do not involve a vessel must be able to establish admiralty jurisdiction. The current test for admiralty jurisdiction, which is a two-part test that contains both a locality and a con-nection test, does not require a vessel to be involved. Despite the Supreme Court’s test, many lower courts have arbitrarily imposed a condition that the suit must involve a vessel to establish admiralty jurisdiction for in personam tort claims. This vessel-requirement creates a test for admiralty jurisdiction that inadequately protects maritime commerce because some forms of maritime commerce, such as professional SCUBA diving, do not involve vessels. Furthermore, this vessel requirement excludes many operations outside of maritime commerce, like U.S. Coast Guard rescues, which may disrupt maritime commerce. Thus, to adequately protect maritime commerce, Congress or the Supreme Court must act to stop lower courts from requiring that a tort involve a vessel to establish admiralty jurisdiction for in personam tort suits.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"55 1","pages":"979"},"PeriodicalIF":0.0,"publicationDate":"2013-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68070944","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":"Taking Voluntariness Seriously","authors":"Ian P. Farrell, J. Marceau","doi":"10.2139/SSRN.2255141","DOIUrl":"https://doi.org/10.2139/SSRN.2255141","url":null,"abstract":"The near-unanimous belief among courts and commentators that the criminal law contains a voluntary act requirement obscures deep disagreement about the meaning, scope, and application of that requirement. This Article explores these longstanding and vexing theoretical disagreements, identifies practical problems that result from these uncertainties, and suggests a novel framework for substantially resolving the confusion. The resolution of these questions is no mere academic exercise. The difference in many cases, particularly strict liability prosecutions, will be the difference between guilt and innocence.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"54 1","pages":"1545"},"PeriodicalIF":0.0,"publicationDate":"2013-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68034121","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}