BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 42 2001 Number 3

[Pages 485-586]
IN DEFENSE OF OUR LAW OF SOVEREIGN IMMUNITY
Alfred Hill*

Abstract:  Professor Hill maintains that the Constitution was grounded on an understanding that the states would not be suable without their consent, either in the federal or state courts; the Eleventh Amendment, within its purview, is declaratory of this understanding. The Supreme Court has consistently treated sovereign immunity as of constitutional dimension. As such, the immunity has been deemed exempt from congressional modification under the Commerce Clause. However, without overt challenge to the immunity’s constitutional status, it has been held subject to congressional modification under Section 5 of the Fourteenth Amendment. The Supreme Court’s decision in this regard does not withstand critical analysis. Sovereign immunity is not the malign doctrine it is commonly thought to be. In general, it has not served as a bar to effective relief for lawless conduct by government officers. For the most part, it has operated to defeat claims arising from consensual relations with the government—and here the immunity has been almost completely eliminated by the federal and state legislatures within their respective areas of competence.

[Pages 587-618]
USE OF JUDICIAL DOCTRINES IN RESOLVING TRANSFER TAX CONTROVERSIES
Jay A. Soled*

Abstract:  The striking difference in the outcomes in two transfer tax cases involving similar circumstances raises an important question: what role, if any, should judicial doctrines play in resolving transfer tax controversies? This Article traces the development of judicial doctrines in the sphere of income tax controversies and discusses the role these doctrines have played, and should play, in resolving transfer tax controversies. It concludes that judicial doctrines should serve only a limited role in resolving transfer tax controversies, and that this limited role should be taken into account by the Internal Revenue Service when it enforces compliance, by taxpayers when they plan their estates, and by Congress when it crafts transfer tax legislation.

[Pages 619-652]
MOTIVE AND OPPORTUNITY TEST SURVIVES CONGRESSIONAL DEATH KNELL IN PRIVATE SECURITIES LITIGATION REFORM ACT
Michael R. Dube

Abstract:  Congress enacted the Private Securities Litigation Reform Act in 1995, in an effort to stop frivolous securities fraud suits. Key to the effort was the imposition of a heightened pleading standard requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” There has been considerable controversy regarding whether Congress codified the “motive and opportunity” prong of the pleading standard historically used by the United States Court of Appeals for the Second Circuit. This Note argues that Congress intended to halt use of the motive and opportunity test in favor of a heightened and uniform pleading standard.

[Pages 653-694]
STUDENT MISCONDUCT AT PRIVATE COLLEGES AND UNIVERSITIES: A ROADMAP FOR "FUNDAMENTAL FAIRNESS" IN DISCIPLINARY PROCEEDINGS
Lisa Tenerowicz

Abstract:  When called upon to review the disciplinary procedures of private colleges and universities, courts have struggled to find a legal theory upon which to base their reviews. Much of this struggle can be attributed to the fact that, because the relationship between a student and a university is unique, it is difficult to find an appropriate doctrinal category. This Note analyzes the methods by which courts have reviewed challenges to disciplinary proceedings in private colleges and universities. Specifically, it examines the approaches taken by courts that have reviewed private school disciplinary procedures, paying particular attention to what these courts have recommended to avoid arbitrary decisionmaking and to achieve “basic” or “fundamental” fairness.

[Pages 695-732]
HONDA MEETS ANASTASOFF: THE PROCEDURAL DUE PROCESS ARGUMENT AGAINST RULES PROHIBITING CITATION TO UNPUBLISHED JUDICIAL DECISIONS
Lance A. Wade

Abstract:  Last year’s Eighth Circuit decision of Anastasoff v. United States drew new attention to the much-debated rules limiting citation to unpublished judicial decisions. The scholarly opinion of Chief Judge Richard Arnold sent a shockwave through the bench, bar, and legal academy by ruling that no-citation rules were an unconstitutional expansion of the federal judiciary’s Article III powers. Post-Anastasoff scholarly commentary has focused on Article III arguments and remolded policy arguments that were made prior to the decision. Little attention has been paid, however, to the way in which no-citation rules impair constitutional rights of individual litigants. This Note traces the historical practice of using prior judicial decisions in arguments to courts, dating back to thirteenth century England. The author then argues that current rules prohibiting the citation of unpublished decisions remove a deeply-rooted common law procedure, and, therefore, deprive litigants of their procedural due process rights.