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

{"title":"The Internet and the Persistence of Law","authors":"J. Hughes","doi":"10.2139/SSRN.370380","DOIUrl":"https://doi.org/10.2139/SSRN.370380","url":null,"abstract":"This Article first describes three distinct visions of the relationship between the Internet and law that appeared in the 1990s: what the author calls the no-law Internet, the Internet as separate jurisdiction, and Internet law as translation. It is the third which now effectively dominates practical discussions of Internet law and policy issues. The project of translation involves more than importing traditional legal concepts into the Internet environment; it is often an attempt to transpose into cyberspace balances of social, political, and economic interests drawn for, and accepted in, the physical world. The Article critiques American legal scholars for failing to appreciate the transnational problem of legal norms for cyberspace and how the Internet is forcing a certain amount of convergence of legal norms among disparate national systems. The Article then proposes a preliminary taxonomy of how convergent legal norms are being created for the Internet.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"44 1","pages":"359"},"PeriodicalIF":0.0,"publicationDate":"2003-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68627061","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":"Rights of Access and the Shape of the Internet","authors":"M. J. Madison","doi":"10.2139/SSRN.346860","DOIUrl":"https://doi.org/10.2139/SSRN.346860","url":null,"abstract":"This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that the different doctrines should be applied consistently with one another and consistent with an understanding of the relevant metaphor that is based on consumer and user experiences of the Internet, rather than on formal property-based constructs.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"44 1","pages":"433"},"PeriodicalIF":0.0,"publicationDate":"2002-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.346860","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68596604","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":"Controlling Opportunistic and Anti-Competitive IntellectualProperty Litigation","authors":"M. Meurer","doi":"10.2139/SSRN.361760","DOIUrl":"https://doi.org/10.2139/SSRN.361760","url":null,"abstract":"It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak IP lawsuits. I conclude that intellectual property courts show some awareness of the value of fee-shifting and summary judgment as tools for controlling opportunistic and anti-competitive lawsuits. Courts display less awareness of the need to restrict preliminary injunctions or encourage declaratory judgments as control measures. Antitrust suits have only a limited role in deterring the most egregious anti-competitive conduct. Besides attacking the credibility of weak lawsuits, it is probably desirable to eliminate the threat of some kinds of IP lawsuits entirely. This could be accomplished by eliminating or restricting IP rights such as business method patents, trade dress protection of product configuration and design, and copyright protection of art reproductions. In other words, it may be desirable to curtail the \"standing\" of parties who own IP rights that generate a substantial threat of opportunistic or anti-competitive litigation with little corresponding benefit in terms of productive incentives.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"30 1","pages":"509"},"PeriodicalIF":0.0,"publicationDate":"2002-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.361760","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68613947","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":"Priestley v. Fowler (1837) and the Emerging Tort of Negligence","authors":"M. Stein","doi":"10.2139/SSRN.337723","DOIUrl":"https://doi.org/10.2139/SSRN.337723","url":null,"abstract":"Although it may fairly be presumed that workmen have always been involved in accidents during the course of their employment, Priestley v. Fowler is the first known recorded decision of an employee having sued an employer for work-related injuries. Consequently, the case has become familiar to several generations of legal commentators, most of whom repeat by rote the accepted wisdom that the opinion originates the doctrine of common employment, and censure in often colourful terms, the ideology they deem displayed in Abinger C.B.'s ruling. More recently, a handful of studies have reassessed the decision within its historical context. Each of these treatments, however, works from the time-honoured premise that Priestley established the defence of common employment. Diverging from conventional scholarship, this article demonstrates that Priestley is better understood within the framework of the emerging independent tort of negligence as an unsuccessful attempt to fashion a duty of care on behalf of masters towards their servants. Specifically, it will argue that Charles Priestley's counsel sought to emulate the arguments (and hence the success) of two Assize verdicts that had extended the customary limitations of liability for negligence earlier that same year: Vaughan v. Menlove and, to a lesser extent, Langridge v. Levy. The article will then illustrate how some thirteen years later, Hutchinson v. York, Newcastle & Berwick Rly. Co. (and its companion decision Wigmore v. Jay), truly produced the doctrine of common employment. This is an assessment with which a plurality of Victorian jurists, as well as the vast majority of contemporary treatise writers agreed. Nevertheless, because of the character of the opinion that Abinger C.B. had issued, a revisionist interpretation developed over time and Priestley, rather than Hutchinson, came to stand for the source of the defence. The article concludes by evaluating more recent, reconsiderations of Priestley, and in revealing their general inaccuracy.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"118 1","pages":"689"},"PeriodicalIF":0.0,"publicationDate":"2002-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68589478","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":"A Two-Track Theory of the Establishment Clause","authors":"F. M. Gedicks","doi":"10.2139/SSRN.318859","DOIUrl":"https://doi.org/10.2139/SSRN.318859","url":null,"abstract":"The Establishment Clause has long been thought to protect two mutually antagonistic values, the separation of church and state, and government neutrality with respect to religion. Separation requires that the government sometimes treat religion worse, and sometimes better, than comparable secular activities. An Establishment Clause doctrine informed by separation presupposes that the involvement of government in matters of religious belief and practice threatens liberty in ways that government involvement in secular matters does not. Separationist doctrine thus subjects relationships between religion and government to special scrutiny, which may result in religion's being subjected to legal and regulatory burdens not imposed on secular activities, or relieved from burdens that are generally imposed on such activities. By contrast, government satisfies neutrality when it treats religious beliefs and practices no better, but also no worse, than comparable secular activities. Under an Establishment Clause doctrine informed by neutrality, religious belief and activity are not thought to be unique, and religion is treated as simply one among many possible activities in which citizens might choose to involve themselves. The vitality of both separation and neutrality in Establishment Clause jurisprudence makes articulation of a coherent theory of that Clause difficult because the competing values often point towards opposing resolutions. The puzzle of antagonistic values that neutrality and separation pose for Establishment Clause doctrine mirrors Speech Clause doctrine, which has operated for decades with such a value conflict under the so-called \"two-track\" theory of freedom of speech. The two \"tracks\" of Speech Clause doctrine are content-based and content-neutral analysis, which correspond to contrasting values of social order and the free flow of ideas and information. This paper compares Establishment Clause doctrine and the two-track Speech Clause in the hope of illuminating how neutrality and separation might coexist under the Establishment Clause. I will argue that, just as Speech Clause doctrine provides an absolute minimum of protection for freedom of expression against even content-neutral regulation, so also Establishment Clause doctrine provides a minimum level of church-state separation against even religiously neutral government actions. In other words, not only has the separation of church and state not been eclipsed by religious neutrality, but separation is actually the more fundamental Establishment Clause value. As such, separation remains a necessary check on interactions between religion and government that pass muster under neutrality analysis.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"43 1","pages":"1071"},"PeriodicalIF":0.0,"publicationDate":"2002-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.318859","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68570703","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":"Race Relations and Modern Church-State Relations","authors":"Thomas C. Berg","doi":"10.2139/SSRN.314941","DOIUrl":"https://doi.org/10.2139/SSRN.314941","url":null,"abstract":"This article traces some connections in the last 50 years between developments in church-state relations and developments in race relations. Like several other recent articles and books, this article traces the course of church-state relations not only in the Supreme Court, but in the broader social, political, and cultural context. The central story in church-state relations in the last 50 years has been the rise of a fairly strict separation of church and state as the overriding constitutional and moral ideal in the 1960s and 70s, and the partial decline of that ideal from the 1980s through the present. This article discusses how developments in the area of race may have facilitated both the rise of strict church-state sepatationism in the 60s and 70s and its subsequent decline. It focuses particularly on three connections. First, the 1960s' concern with the unjust treatment of blacks contributed to a special concern for the situation of other minorities, including religious minorities -- a concern that has probably moderated in recent years. Second, although the 1960s civil rights movement itself was highly religious, interpretations of it among elites (even religious elites) created an ambivalent attitude toward the intertwining of religion and government and an embrace of a secular-oriented approach to social welfare ministries -- an approach that has been challenged in recent years by social ministries that involve more explicit use of religious teaching. Third, the 1960s and 70s saw a heightened suspicion, in courts and other parts of society, that private entities and \"private choice\" were serving as means to frustrate desegregation and racial equality. Those years, therefore, were an inopportune time to assert claims for equal government aid to religiously affiliated education and other activities -- and indeed the Supreme Court struck down most forms of aid during this time. But in the past 20 years, many religious schools -- especially Catholic ones -- have shown a willingness and ability to serve minority students, and this removal of the taint of racial segregation has strengthened the case for equal government aid on both constitutional and moral grounds.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"43 1","pages":"1009"},"PeriodicalIF":0.0,"publicationDate":"2002-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68566221","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":"Historic Preservation Grants to Houses of Worship: A Case Study in the Survival of Separationism","authors":"Ira C. Lupu, R. Tuttle","doi":"10.2139/SSRN.310219","DOIUrl":"https://doi.org/10.2139/SSRN.310219","url":null,"abstract":"The movement in the law of the Religion Clauses from Separationism, which requires distinctive treatment of religious institutions, to Neutralism, which prohibits such distinctive treatment, has been proceeding for the past twenty years. In some legal contexts, however, this movement has occurred erratically or incompletely, and normative questions remain about whether this paradigm change should proceed with respect to all relevant issues. In this paper, we test the positive and normative implications of the shift by exploring in detail a particular, heretofore unexamined legal context - government grants to active houses of worship for historic preservation. Many states have schemes of historic preservation, which include coercive regulation designed to preserve the historic character of landmarked properties. These regulatory regimes have been challenged as applied to properties owned by religious entities, and courts have reached disparate results on the merits of these challenges. Historic preservation schemes also include the possibility of government grants for the support of preservation efforts, and no court has yet been asked to rule on the permissibility of such grants. In the paper, we begin by analyzing the existing Supreme Court precedent on state financial support for the construction or preservation of places devoted to worship or religious teaching. After briefly reviewing the movement from Separationism to Neutralism, we collect and appraise materials on historic preservation. These include the leading court decisions on landmark regulation of houses of worship; conflicting opinion letters on the permissibility of preservation grants for such structures from Joseph Lieberman (then-Attorney General of Connecticut), and Walter Dellinger (then-Assistant Attorney General, Office of Legal Counsel, DOJ); and information from federal agencies and state historic preservation commissions concerning their current policies with respect to such grants. This review of policy reveals a remarkable degree of disparity, as various levels of government struggle to come to grips with changes in the relevant law. We conclude the paper by invoking a principle of Religion Clause symmetry - what the government may regulate it may also subsidize - and by suggesting that the religion-specific line between permissible and impermissible subsidy (and regulation) should be drawn between the exterior and interior of houses of worship.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"43 1","pages":"1139"},"PeriodicalIF":0.0,"publicationDate":"2002-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561882","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":"A critique of the motivational analysis in wrongful conception cases.","authors":"I J Alvarez","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Most states now recognize a tort cause of action for wrongful conception, typically resulting from a failed sterilization. States differ, however, in determining whether damages should be awarded for child-rearing expenses and what factors juries can consider in setting such damage awards. This Note argues that one commonly used factor, the parents' motivation for selecting sterilization, is irrelevant and leads to inequitable results. Since the right to use contraception is constitutionally protected, the choice to sterilize in order to avoid financial burdens associated with child-rearing should not be given preferential treatment to sterilizations motivated by concerns of genetic defects or for the mother's health.</p>","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"41 3","pages":"585-626"},"PeriodicalIF":0.0,"publicationDate":"2000-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25771349","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":"Medically necessary organ transplants for prisoners: who is responsible for payment?","authors":"J Wright","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"39 5","pages":"1251-92"},"PeriodicalIF":0.0,"publicationDate":"1998-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25645808","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 Balancing Test","authors":"P. Mcfadden","doi":"10.4324/9781315699868-57","DOIUrl":"https://doi.org/10.4324/9781315699868-57","url":null,"abstract":"","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"29 1","pages":"585"},"PeriodicalIF":0.0,"publicationDate":"1988-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70434712","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}