BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 42 September 2001 Number 5

[Pages 989-1080]
REASONABLE EXPECTATIONS V. IMPLIED-IN-FACT CONTRACTS:IS THE SHAREHOLDER OPPRESSION DOCTRINE NEEDED?
Douglas K. Moll*

Abstract:  Courts and commentators have compared oppression law’s reasonable expectations inquiry to an implied-in-fact contract analysis. This Article reveals that oppression law and contract law are actually more dissimilar in operation than they might appear. Although contract law has the tools to protect the close corporation shareholder, this Article illustrates how well-entrenched doctrinal hurdles will likely prevent it from doing so. The Article then argues that because oppressive majority conduct nevertheless breaches an actual bargain struck between the shareholders, and because the oppressive majority’s actions often result in a theft of the minority’s investment, contract law should take action to enforce the “deal” and to protect the minority shareholder. Thus, the Article concludes that when the oppression doctrine safeguards reasonable expectations, oppression law is effectively stepping in for contract law and is accomplishing what contract law itself should be doing. By coming to this conclusion, this Article answers a fundamental question—is the shareholder oppression doctrine needed in light of the established principles of contract law? By picking up where contract law leaves off, the shareholder oppression doctrine serves a critical protective function that justifies its independent existence.

[Pages 1081-1160]
GENDER-BASED VIOLENCE AS JUDICIAL ANOMALY:BETWEEN "THE TRULY NATIONAL AND THE TRULY LOCAL"
Deborah M. Weissman*

Abstract:  In United States v. Morrison, the Supreme Court struck down the federal civil rights remedy for gender-based violence in the Violence Against Women Act. Notwithstanding evidence considered by Congress documenting the economic impact of domestic violence, and despite the inability of state and local systems to address gender-based violence claims, the Court determined that Congress lacked the necessary authority. The author argues that Morrison is remarkable in what it reveals about the legal status of women as mediated in multiple levels of judicial transactions. She contends that the decision reflects attitudes ingrained in the nation’s judicial culture. Specifically, the doctrines used by the Court to oppose adjudicating cases of violence against women are themselves derived from, and analogous to, the arguments used by state courts to avoid hearing such claims. The Article explores the day-to-day practices by which state courts adjudicate domestic violence cases and outlines the need for new legal strategies to address gender-based violence.

[Pages 1161-1194]
MULTIDISCIPLINARY PRACTICES:MUST A CHANGE TO MODEL RULE 5.4 APPLY TO ALL LAW FIRMS UNIFORMLY?
Marc N. Biamonte

Abstract:  At the American Bar Association 2000 annual meeting, delegates voted to reinforce Model Rule 5.4, prohibiting fee sharing and partnership between lawyers and non-lawyers in arrangements known as multidisciplinary practices. Nevertheless, the topic continues to be controversial, primarily because the Big Five accounting firms are hiring an increasing number of lawyers and expanding into services that many argue constitute the practice of law. This Note asserts that applying Rule 5.4 uniformly to law firms of all sizes is not in the best interest of the small firms and solo practitioners that comprise the majority of the legal profession; such firms and their clients would benefit if small firms were allowed to participate in MDPs. The author suggests, however, that such firms not be permitted to partner with public auditing firms, whose duty to disclose client activity to the public conflicts with the lawyer’s duty to protect client confidences.

[Pages 1195-1214]
TO ISSUE OR NOT TO ISSUE:ANALYSIS OF THE BUSINESS METHOD PATENT CONTROVERSY ON THE INTERNET
Greg S. Fine

Abstract:  The author argues that in time business method patents will promote competition and innovation on the Internet. He begins by tracing the history, goals, and criteria of patent law in general, and then discusses the birth of the BMP, reviews a sample of recently issued BMPs, and summarizes the various arguments that undercut and support the advent of the BMP. After reviewing the arguments against Internet-based BMPs, the author asserts that although various and sometimes random, scholarly criticisms can be placed into three broad classifications: quality, efficiency, and consistency. Balancing these arguments, the author argues that although the consistency arguments have merit, they ignore the realities of the Internet business sector.

[Pages 1215-1262]
HIGH HOPES:WHY COURTS SHOULD FULFILL EXPECTATIONS OF LIFETIME RETIREE HEALTH BENEFITS IN AMBIGUOUS COLLECTIVE BARGAINING AGREEMENTS
Douglas Sondgeroth

Abstract:  Since World War II, employer-provided medical benefits for retirees have been a common feature of collective bargaining agreements. Due to dramatic increases in the cost of these benefits over the last decade, many employers have unilaterally modified or terminated these benefits, leaving retirees without their expected health insurance. This Note argues that until Congress acts to resolve this situation, federal courts must act to protect retirees’ benefits. The Note concludes that because the retirees’ expectations of continued benefits are reasonable in light of the union workplace and such an approach is consistent with federal labor policy, courts should apply a rebuttable presumption that such benefits vest once retirees prove the agreement providing them is ambiguous, and then allow employers to present evidence that overcomes the presumption.