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

{"title":"Grutter's First Amendment","authors":"P. Horwitz","doi":"10.2139/SSRN.568501","DOIUrl":"https://doi.org/10.2139/SSRN.568501","url":null,"abstract":"Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of educational autonomy, the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter. Some of the consequences of the Court's approach in Grutter are surprising. If Grutter is read as recognizing a strong constitutional value of deference to educational decisions, a variety of ongoing constitutional controversies might be decided differently. I trace this possibility through discussions of current issues including the constitutionality of campus hate speech codes, the permissibility of single-sex or single-race education, and the current litigation over the Solomon Amendment, which penalizes schools (including law schools) that bar on-campus military recruiters. Grutter may also be read as suggesting that the Court does not value educational autonomy as such, but rather a particular vision of higher education, in which universities are valued for their contribution to democratic legitimacy. This reading, too, has significant implications. It offers a substantive vision of First Amendment values that, in many respects, is at odds with the approach taken by the Justices elsewhere in the jurisprudence of the First Amendment. And it raises deep questions about the imperfect fit between the Court's vision of academic freedom and the contested understanding of academic freedom outside the courts. My exploration of Grutter's First Amendment culminates in an extended treatment of what I consider its most powerful implication. Grutter may be read as a groundbreaking acknowledgment by the Court of the importance of what I call First Amendment institutions - institutions such as universities, the press, libraries, and other entities that play a central role in public discourse and democratic culture. I argue that Grutter steps away from the usual, more formalist pattern of First Amendment jurisprudence and instead recognizes that the law ought to be responsive to and respectful of the unique role these institutions play in society, and should allow them a substantial degree of autonomy to shape their own norms and practices. In that sense, this article argues for an approach to First Amendment law that builds on a growing school of scholarship advocating an experimentalist approach to constitutional law. Ultimately, the article is intended to spark a broader debate about the nature and role of First Amendment institutions within our constitutional culture and the complex relationship between constitutional law and constitut","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"46 1","pages":"461"},"PeriodicalIF":0.0,"publicationDate":"2004-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67766157","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":"Human-nonhuman chimeras: a regulatory proposal on the blurring of species lines.","authors":"Nicole E Kopinksi","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act's provisions and modification to it statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada's legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.</p>","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"45 3","pages":"619-66"},"PeriodicalIF":0.0,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25886853","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 Puzzle of Habeas Corpus","authors":"Edward A. Hartnett","doi":"10.2139/SSRN.516882","DOIUrl":"https://doi.org/10.2139/SSRN.516882","url":null,"abstract":"The U.S. Constitution has always protected habeas corpus. Yet when we consider the Suspension Clause together with three other constitutional principles, we find a constitutional puzzle. Pursuant to the Madisonian Compromise, inferior federal courts are constitutionally optional. Under Marbury v. Madison, Congress cannot expand the Supreme Court's original jurisdiction beyond the bounds of Article III. Pursuant to Tarble's Case, state courts cannot issue writs of habeas corpus to determine the legality of federal custody. There would seem to be a violation of the Suspension Clause, however, if neither the inferior federal courts, the Supreme Court, nor the state courts could issue writs of habeas corpus. This Article suggests that the apparent conFLict among these constitutional principles can be resolved by the power of individual Justices of the Supreme Court to issue writs of habeas corpus.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"46 1","pages":"251"},"PeriodicalIF":0.0,"publicationDate":"2004-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67756006","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":"Navigating The Hidden Obstacles to Ex-Offender Reentry","authors":"A. Thompson","doi":"10.4135/9781452232119.N23","DOIUrl":"https://doi.org/10.4135/9781452232119.N23","url":null,"abstract":"As federal and state correctional institutions steadily release record numbers of ex-offenders each year, the communities into which prisoners are released are unprepared to sustain the economic and social burden of the massive reentry movement. As a result, reentering exoffenders lack the support needed to reintegrate themselves into society and to lead productive, law-abiding lives. This Article first explores political trends that account for the increase in incarceration rates over the last two decades and the resulting social, legal, and economic challenges of reentry both ex-offenders and their communities face. Only recently has the government begun to respond to these problems by establishing reentry courts that specialize in ex-offender transition, support, and supervision. After questioning the efficiency and institutional competence of reentry courts, the Article suggests two alternative ways in which the legal community might help to manage ex-offender reentry. First, public defender offices could evolve into a less specialized and more integrated role through which they could represent ex-offenders in a variety of matters related to reentry. Second, law schools could provide students with clinical opportunities through which to explore creative, non-traditional solutions to representation of ex-offenders. Ultimately, collaboration between lawyers and communities will be necessary to provide ex-offenders with the resources they need for successful","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"45 1","pages":"255"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70586600","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":"Copyright Law's Theory of the Consumer","authors":"Joseph P. Liu","doi":"10.2139/SSRN.466420","DOIUrl":"https://doi.org/10.2139/SSRN.466420","url":null,"abstract":"Copyright law has a rather well-developed theory of the author, but it has no similarly well-developed conception of the consumer. This exploratory Article is an attempt to begin piecing together a coherent image of the copyright consumer. The author argues that copyright law currently conceives of consumers in one of two ways, either as passive consumers of copyrighted works or as active authors in their own right. This binary conception of the consumer, however, is incomplete, as it neglects important and complex consumer interests in autonomy, communication, and creative self-expression. By examining these additional interests, it is possible to begin constructing a richer and more complex image of the copyright consumer. This image, in turn, can help shed light on some of the current debates over the proper shape and scope of copyright law.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"78 4 1","pages":"397-438"},"PeriodicalIF":0.0,"publicationDate":"2003-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742095","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":"Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science","authors":"D. S. Caudill, L. Larue","doi":"10.2139/SSRN.462740","DOIUrl":"https://doi.org/10.2139/SSRN.462740","url":null,"abstract":"In response to the claim that many judges are deficient in their understanding of scientific methodology, we identify in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, we observe that courts (in the cases we analyze) are not interested in pragmatically constructing legal science, but rather attempt to ensure that science itself, conceived pragmatically (i.e., without idealizing science), is appropriated in law. We conclude that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable - albeit pragmatic - science, to welcome unreliable - albeit authoritative - science, and thereby to create a body of legal science that is out of sync with mainstream science.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"45 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2003-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67740199","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":"Reckless Disregard: The Bush Administration's Policy of Cutting Taxes in the Face of an Enormous Fiscal Gap","authors":"Daniel N. Shaviro","doi":"10.2139/SSRN.444242","DOIUrl":"https://doi.org/10.2139/SSRN.444242","url":null,"abstract":"The Bush Administration's policy of sharply cutting taxes while increasing government spending is both misguided and harmful. Presumably rationalized in private as a way of shrinking government over the long term without paying a current political price, it in fact increases the government's distributional intervention by handing money to current voters at the expense of younger and future generations. The Bush policies have increased the future tax increases that are likely to be necessary. In addition, they are likely to require additional Social Security and Medicare cuts that can be seen in large part as negative taxes, refunding some of the positive lifetime net taxes that future retirees will by then have paid. Reducing future negative taxes is a lot like increasing future positive ones. The fiscal gap is largely growth-proof because so much government spending, no less than taxes, is effectively pegged to the size of the economy. This means that we cannot outgrow it in the manner of past wartime national debts. High economic growth would concededly make default on the government's implicit obligations considerably less painful. However, the fiscal gap has the potential significantly to reduce economic growth, for two main reasons. First, it may result in large tax increases on workers to keep benefits flowing to seniors, reducing saving because the workers would have saved more of the transferred funds. Second, it may lead to an Argentina-style meltdown in the U.S. government's position as a borrower in world capital markets, potentially yielding chronic inflation, unemployment, and bank and currency crises that affect our economic productivity for an indefinite period. The Bush Administration's policy of increasing the fiscal gap ought to be reversed as soon as possible, on both the tax and spending sides of the ledger. How this ought to be done is beyond this article's scope, although I have discussed aspects of it elsewhere. Current seniors ought to share in the burden, however, both through tax increases and Social Security and Medicare reform that should take account of differences in people's ability to pay. Unfortunately, policy changes in the near future are more likely to make things worse than better.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"45 1","pages":"1285"},"PeriodicalIF":0.0,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789005","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":"An Exclusive Right to Evoke","authors":"Stacey L. Dogan","doi":"10.2139/SSRN.410547","DOIUrl":"https://doi.org/10.2139/SSRN.410547","url":null,"abstract":"Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law's normative goals.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"44 1","pages":"291"},"PeriodicalIF":0.0,"publicationDate":"2003-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68695361","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":"One Nation Among Many: Policy Implications of Cross-Border Tax Arbitrage","authors":"Diane M. Ring","doi":"10.2139/SSRN.417560","DOIUrl":"https://doi.org/10.2139/SSRN.417560","url":null,"abstract":"Cross-border tax arbitrage arises where a transaction is subject to two or more countries' differing tax regimes. Conflicts between the tax rules create unique opportunities for the parties to engage in profitable tax planning - opportunities that would not be available if the transaction occurred entirely domestically in one of the countries. These opportunities have been a growing feature of the multi-jurisdictional business world and have raised issues concerning whether and how countries, such as the United States, should respond. This Article examines cross-border tax arbitrage in the context of both domestic tax policy and of other international tax issues, and considers potential responses. It proposes an analytic framework for cross-border tax arbitrage based on specific case studies. The Article concludes by proposing a balancing test for determining the appropriate treatment of specific instances of cross-border tax arbitrage.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"44 1","pages":"79-176"},"PeriodicalIF":0.0,"publicationDate":"2003-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68717536","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 Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules","authors":"F. Kieff","doi":"10.2139/SSRN.392202","DOIUrl":"https://doi.org/10.2139/SSRN.392202","url":null,"abstract":"The legal rules for determining whether an inventor is entitled to a patent are presently enforced in the first instance by the Patent Office through ex parte examination of patent applications. Critics of various aspects of the patent system suggest that these rules should be ratcheted up in some way, subjecting patents to more scrutiny during Patent Office examination. Departing from existing literature, this paper offers a hypothetical model system under which patent applications are merely registered, not examined, to show how hard look approaches like examination increase social costs over soft look approaches like registration. The paper presents a new normative view of present positive law rules for obtaining patents that sees these rules as primarily operating to minimize social cost, and accounts for otherwise puzzling aspects of the patent system. This \"registration\" theory for the patent-obtaining rules is a companion to the \"commercialization\" theory for the patent-enforcing rules presented in prior work by the same author and these together are shown to offer a more coherent view of the patent system than other theories in the literature, such as the so-called \"prospect\" and \"rent dissipation\" theories. Far from defending the status quo of the present system, the registration theory identifies those rules that are essential and those that should be reformed. The registration theory reveals inherent registration aspects of our present system; and elucidates reasons for eschewing reforms presented elsewhere in the literature and adopting those presented here.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"45 1","pages":"55"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68665861","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}