BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 43 2001 Number 1

[Pages 1-72]
SUSTAINABILITY, DISTRIBUTION, AND THE MACROECONOMIC ANALYSIS OF LAW
Douglas A. Kysar*

Abstract:  Legal economic analysis has traditionally focused on the application of microeconomic theory to questions of legal import. Scholars have generally regarded macroeconomic effects of legal rules as lying beyond the purview of the legal decisionmaker’s jurisdiction. This Article argues that such exclusion of macroeconomic subject matter from legal analysis may rest on a scientifically erroneous view of the economic process. The conventional understanding of the economic process presumes an unlimited supply of material inputs and an infinite natural capacity to absorb waste outputs. Fundamental scientific principles suggest that this understanding is flawed. The economic process must necessarily be limited in scale by the capacity of the ecological superstructure to sustain it. Thus, in addition to the efficient allocation of resources, legal economic analysis also should be concerned with the sustainable maintenance of scale. Consideration of scale effects by legal decisionmakers cannot be safely ignored in the way that distributive effects have been, given that no political mechanism analogous to the tax and transfer system exists to regulate the scale of the macroeconomy.

[Pages 73-124]
OLD CONSTITUTIONS AND NEW ISSUES:NATIONAL LESSONS FROM VERMONT'S STATE CONSTITUTIONAL CASE ON MARRIAGE OF SAME-SEX COUPLES
Robert F. Williams*

Abstract:  The Vermont Supreme Court’s 1999 ruling in Baker v. State was a watershed decision, holding that same-sex couples in Vermont were entitled to the same benefits and protections as opposite-sex married couples. While Baker is extremely important as a matter of substantive law, and as a contribution to the national discussion of the issues surrounding marriage of same sex-couples, it also provides an excellent lens through which to consider principles of state constitutional law and the New Judicial Federalism. This Article demonstrates how Baker is illustrative of major themes in state constitutional law, including the use of state constitutional history and textual analysis, distinctions between federal equal protection approaches and independent state constitutional equality doctrines, and plaintiffs’ choice of state forum and state constitutional claims. The Article also shows how Baker highlights the application of a new, developing state constitutional rights jurisprudence.

[Pages 125-158]
BAKER V. STATE AND THE PROMISE OF THE NEW JUDICIAL FEDERALISM
Lawrence Friedman* Charles H. Baron**

Abstract:  In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional law scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores the ways the Vermont justices employed doctrinal threads from these authorities, analyzes and critiques perceived shortcomings in the reasoning of each opinion, and then addresses the important contribution that independent state constitutional jurisprudence can make to constitutional discourse. The Article further encourages law schools to implement curricular changes that will expose students to state constitutional law.

[Pages 159-192]
STICKS AND STONES:HOW WORDS CAN HURT
Arielle D. Kane

Abstract:  In 1969, in Brandenburg v. Ohio, the United States Supreme Court held that speech tending to promote lawlessness or advocating illegal activity cannot be restrained by criminal law unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Brandenburg standard, which applies to the use of civil as well as criminal sanctions to regulate free speech, reflects the Court’s belief that the free competition of ideas, rather than censorship, is the preferred means of eliminating “bad” ideas in the public consciousness. Courts and constitutional scholars alike are in discord over the appropriateness of the First Amendment’s protective veil, particularly when it functions to protect materials that instruct on how to perform illegal or harmful activity and negligent publications that contain misinformation, reliance upon which leads to injury. This Note explores the various types of litigation private parties have used in attempting to impose liability on speakers whose speech resulted in such harm.

[Pages 193-226]
TOWARD A STRICTER ORIGINALITY STANDARD FOR COPYRIGHT LAW
Ryan Littrell

Abstract:  In order to be copyrighted, a work of art must be “original.” Critics have persuasively argued that copyright law, at various phases in its evolution, has defined originality by applying a Romantic conception of authorship, according to which the author creates out of a wholly personal, original self. But, in contrast to the idealized, Romantic work, an actual work need only exhibit an “extremely low” level of originality in order to merit copyright protection. This Note attempts to resolve this apparent tension between theory and practice, arguing that the Romantic conception of authorship underlies the law’s low originality standard. Further, the Note argues that the modern understanding of authorship, which recognizes that the outside world shapes the author’s consciousness, furnishes a more appropriate model for originality jurisprudence. Accordingly, the Note concludes, a stricter originality standard is needed, which would serve to reinvigorate the public domain while protecting truly original works.