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

{"title":"The Unambiguous Supremacy Clause","authors":"Dustin M. Dow","doi":"10.2139/SSRN.2034591","DOIUrl":"https://doi.org/10.2139/SSRN.2034591","url":null,"abstract":"The Supreme Court’s Supremacy Clause jurisprudence has reached a confusing junction. The Court recently declined to say whether the Supremacy Clause supplies a cause of action for federal court litigants. As a result, lower courts and litigants are caught between conflicting doctrines, one that suggests cause of action power exists within the Clause and one that denies the Clause could ever possess such power. Neither line of cases definitely answers the question. A cause of action is a necessary component for a federal court plaintiff to maintain a suit. This note attempts to answer whether potential plaintiffs should be able to rely on the Supremacy Clause when applicable federal law does not otherwise contain a cause of action. Navigating the history of the Supremacy Clause, the contours of dueling lines of precedent, and policy ramifications, the note concludes that in the midst of the confusion, state defendants should seize the opportunity to argue against the notion that the Supremacy Clause supplies a cause of action for plaintiffs.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"20 1","pages":"1009"},"PeriodicalIF":0.0,"publicationDate":"2012-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2034591","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67872163","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":"Wills for Everyone: Helping Individuals Opt Out of Intestacy","authors":"Reid K. Weisbord","doi":"10.2139/SSRN.1978559","DOIUrl":"https://doi.org/10.2139/SSRN.1978559","url":null,"abstract":"Most Americans die without executing a will, thereby allowing testamentary freedom to lapse and property owned at death to pass by default rules of intestacy rather than the decedent’s expressed intent. This is problematic because most individuals without a will neither intend to die intestate and nor understand the significant undesirable consequences of intestacy. Prior intestacy scholarship evaluated the fairness, efficiency and social consequences of the current rules of heirship, but implicitly accepted the high rate of intestacy as a fait accompli. This Article rejects the assumption that the high rate of intestacy is insusceptible to legal reform. Scholars have traditionally explained the high long-term rate of intestacy as the product of psychological fears regarding mortality and the unwillingness to contemplate matters relating to death. But this explanation seems implausible. Even though humans commonly harbor fears about death, they are psychologically capable of contemplating the succession of property as demonstrated by the widespread use of non-testamentary transfers such as life insurance and jointly titled property with survivorship rights. This Article proposes an alternative explanation for testamentary procrastination, ascribing blame on the relative inaccessibility of the will-making process because of its obscurity, complexity, and cost. To simplify and promote lay access to the will-making process, this Article proposes a theory of lay testation and advocates for renewed consideration of statutory form wills with several important innovations. The most notable proposal is the creation of a “testamentary schedule,” an optional form will attached to the state individual income tax return that could be prepared and filed electronically. By integrating the income tax and estate planning processes, the testamentary schedule would discourage testamentary procrastination by interacting with the testator annually at the optimal moment, when she is required to prepare legally significant tax documents that in many cases take into account considerations relevant to estate planning (e.g., potential beneficiaries and the nature and extent of property). The Appendix includes a sample testamentary schedule and revocation form.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"53 1","pages":"877"},"PeriodicalIF":0.0,"publicationDate":"2012-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1978559","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67825071","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":"Hey! That’s My Valor: The Stolen Valor Act and Government Regulation of Speech Under the First Amendment","authors":"Kathryn Smith","doi":"10.2139/SSRN.1927590","DOIUrl":"https://doi.org/10.2139/SSRN.1927590","url":null,"abstract":"The Stolen Valor Act makes it a criminal offense to lie about receiving military decorations. Through the Stolen Valor Act, the government seeks to protect the honor associated with receiving military decorations. The Stolen Valor Act raises several First Amendment issues and recently has been held unconstitutional by several courts, including the Ninth Circuit in the 2010 decision United States v. Alvarez. This Note argues that in light of the First Amendment framework and false speech in other contexts, the Stolen Valor Act unconstitutionally restricts First Amendment freedoms.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"53 1","pages":"775"},"PeriodicalIF":0.0,"publicationDate":"2011-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67794767","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":"Pullman Abstention in Preemption Cases","authors":"Sebastian Waisman","doi":"10.2139/SSRN.1931381","DOIUrl":"https://doi.org/10.2139/SSRN.1931381","url":null,"abstract":"The abstention doctrine articulated by the Supreme Court in 1941 in Railroad Commission of Texas v. Pullman Co. calls for federal courts to postpone asserting jurisdiction over federal constitutional challenges to state laws to permit state courts to resolve potentially dispositive ambiguities in those laws. In preemption cases, however, many courts have declined to abstain under Pullman, despite the fact that preemption challenges to state laws raise the very federalism-based concerns that the Pullman doctrine was designed to address. When a state law is challenged on grounds that it is preempted by a federal law, ambiguous and potentially dispositive matters of state law often remain undecided. A federal court’s refusal to abstain in such cases risks the possibility of needless interference with state programs, unseemly conflict with state courts, or superfluous or premature adjudication of federal issues. This Note argues that federal courts should invoke Pullman abstention in preemption cases using a flexible, case-by-case analysis that preserves the ability of federal courts to vindicate federal rights without jeopardizing core principles of judicial federalism or wasting scarce resources.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"52 1","pages":"1515"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67798888","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":"Initial Disclosures and Discovery Reform in the Wake of Plausible Pleading Standards","authors":"Emily C. Gainor","doi":"10.2139/SSRN.1916285","DOIUrl":"https://doi.org/10.2139/SSRN.1916285","url":null,"abstract":"This Note advocates for reform of the federal initial disclosure of documents rule. It asserts that plausible pleadings, mandated by Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, provide sufficient foundation to support increased use of initial disclosures as a means to reduce the costs of civil discovery. The Note focuses in particular on the reform initial disclosure rule pioneered as part of the Massachusetts Superior Court Business Litigation Session’s Discovery Pilot Project. The Discovery Pilot Project’s initial disclosure rule differs from the initial disclosure requirement under the Federal Rules of Civil Procedure in that it (i) requires actual document production and (ii) is intended as a principal document discovery tool. The Note argues that the federal initial disclosure of documents rule should be amended to include an actual production requirement, but that the use of initial disclosures as a principal discovery tool is too ambitious to warrant national replication.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"52 1","pages":"1441"},"PeriodicalIF":0.0,"publicationDate":"2011-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67782586","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 Constitutional Future of Race-Neutral Efforts to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools","authors":"Kimberly Robinson","doi":"10.2139/SSRN.1371058","DOIUrl":"https://doi.org/10.2139/SSRN.1371058","url":null,"abstract":"In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools because the decision leaves very little room for racial classifications that would survive strict scrutiny. This Article further contends that governments should be given wide latitude to adopt race-neutral efforts to avoid racial isolation and create diverse schools because these efforts will help school districts accomplish the goals of the Equal Protection Clause while avoiding many of the potential harms of racial classifications. In light of how Parents Involved will push districts to focus on race-neutral efforts to achieve diversity and avoid racial isolation, this Article confronts the key issues that will determine the future of efforts to provide diverse elementary and secondary schools.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"50 1","pages":"277"},"PeriodicalIF":0.0,"publicationDate":"2009-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68171678","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":"Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation","authors":"Donald G. Gifford","doi":"10.2139/SSRN.1090867","DOIUrl":"https://doi.org/10.2139/SSRN.1090867","url":null,"abstract":"The state attorney general has emerged during the past decade as a \"super plaintiff\" in state parens patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. Attorneys general sue on behalf of their states as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state litigation against product manufacturers requires both a questionalbe expansion of the state's standing to sue parens patriae and a dubious utilization of longstanding torts such as public nuisance. The Article then employs the intertwined concdepts of justiciability and separation of powers to assess the legitimacy of this new wave of regulatory litigation. Finally it explores how the symbiotic relationship between state attorneys general and a small number of plaintiffs' law firms distorts both governmental priorities and fiscal policy.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"49 1","pages":"913"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68136420","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":"Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem","authors":"F. Kieff, Troy A. Paredes","doi":"10.2139/SSRN.948468","DOIUrl":"https://doi.org/10.2139/SSRN.948468","url":null,"abstract":"The problems of the intellectual property (\"IP\") anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at the same time, the IP owners face a number of constraints that mitigate their interest in acting opportunistically by holding out. Through careful attention to IP owner payoffs and self-restraint, the proposed structure is designed to coordinate behavior among relevant IP owners, thus overcoming the anticommons problem. This approach is designed to help lawyers serve their role as transaction cost engineers who can structure relationships in ways that get deals done.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"48 1","pages":"111"},"PeriodicalIF":0.0,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67904230","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":"Ten Things to do About Patent Holdup of Standards (and One Not To)","authors":"Mark A. Lemley","doi":"10.31235/osf.io/guze5","DOIUrl":"https://doi.org/10.31235/osf.io/guze5","url":null,"abstract":"Congress, the courts, scholars, and the press have focused more and more attention on what is shaping up to be the central public policy problem in intellectual property law today: the problem of holdup by patent owners, particularly but not exclusively in the context of standard setting. I will suggest ten things we might do to deal with this problem, and at least one thing we probably ought not to do.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"88 1","pages":"149"},"PeriodicalIF":0.0,"publicationDate":"2006-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652351","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 Equal Protection of Free Exercise: Two Approaches and their History","authors":"Bernadette A. Meyler","doi":"10.2139/SSRN.796288","DOIUrl":"https://doi.org/10.2139/SSRN.796288","url":null,"abstract":"Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually imbricated. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Nor, this Article argues, should equal protection approaches be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection that ignores the lessons that the Fourteenth Amendment taught about the nature of group classification and instead, by emphasizing the individual in isolation, downplays her free exercise claims. Considering this tendency within the context of current theories of group rights and antidiscrimination law, the Article concludes that we should resuscitate the now neglected, alternative strand of an equal protection approach to free exercise.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"65 1","pages":"275"},"PeriodicalIF":0.0,"publicationDate":"2005-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67830254","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}