BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 45 2003 Number 1

[Pages 1-54]
WHY JUDGES APPLYING THE DAUBERT TRILOGY NEED TO KNOW ABOUT THE SOCIAL, INSTITUTIONAL, AND RHETORICAL-AND NOT JUST THE METHODOLOGICAL- ASPECTS OF SCIENCE
David S. Caudill* & Lewis H. LaRue**

Abstract:  In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies 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, this Article observes that courts (in the cases it analyzes) 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. This Article concludes that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable—albeit pragmatic—science, welcome unreliable—albeit authoritative—science, and thereby create a body of legal science that is out of sync with mainstream science.

[Pages 55-124]
THE CASE FOR REGISTERING PATENTS AND THE LAW AND ECONOMICS OF PRESENT PATENT-OBTAINING RULES
F. Scott Kieff*

Abstract:  Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to more scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as primarily operating to minimize social cost, and that accounts for otherwise puzzling aspects of the patent system. This “registration” theory for patent-obtaining rules is a companion to the “commercialization” theory for patent-enforcing rules by the same author. This Article shows how these theories together offer a more coherent view of the patent system than the “reward,” “prospect,” and “rent dissipation” theories. This Article further identifies those patentability rules that are essential and those that should be reformed, while revealing inherent registration aspects of our present system and reasons for eschewing reforms presented elsewhere.

[Pages 125-146]
THE NATIONAL LABOR RELATIONS ACT: WHAT WENT WRONG; CAN WE FIX IT?
Julius Getman*

Abstract:  When the National Labor Relations Act (“NLRA”) was enacted, both labor and management believed that it would pave the way for unionization and the spread of collective bargaining. The key provisions that led to such great hopes by unions and their supporters remain in force, but after many years of working with the NLRA, optimism has given way to cynicism and despair about the law’s ability to protect workers and enhance collective bargaining. This Essay provides tentative suggestions for structuring a legislative agenda that would make basic labor law more even handed and protective of basic worker rights. Recognizing that basic labor law is currently not a friend to unions, the Essay concludes that even though efforts to improve it are likely to meet with significant resistance, they are, nevertheless, worth the effort.

[Pages 147-172]
SPEECH, SPOUSES, AND STANDING: IS THERE STANDING TO SUE WHEN SANCTIONS THREATENED AGAINST ONE'S SPOUSE CHILL PROTECTED EXPRESSION?
Jeremy A.M. Evans

Abstract:  When a public employee’s spouse forgoes expression protected by the First Amendment for fear of direct, employment-related sanctions against the public employee, the spouse has suffered a chilling injury. Courts are split on whether such injuries constitute injuries in fact sufficient for standing, however. This Note explores chilling injuries as a basis for standing and suggests that the tests courts employ to determine whether chilling injuries are injuries in fact are inconsistently applied and inadequately protect First Amendment rights. This Note argues that courts should focus on the choice at the heart of any chilling injury: the choice between forgoing protected expression or suffering consequences. One should have standing to sue when government action forces one to make an intolerably difficult choice of whether to engage in protected expression.

[Pages 173-204]
DEMOTED TO HIGH SCHOOL: ARE COLLEGE STUDENTS' FREE SPEECH RIGHTS THE SAME AS THOSE OF HIGH SCHOOL STUDENTS?
Karyl Roberts Martin

Abstract:  The First Amendment guarantees significant rights to free speech and expression for students of all ages. These rights have been limited, however, by the U.S. Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier that school officials can regulate the style and content of school-sponsored student speech in ways that are “reasonably related to legitimate pedagogical concerns.” Since then, lower courts have relied on Hazelwood to uphold censorship of student speech in elementary and secondary school, including restrictions based on the speaker’s viewpoint. Recent cases have extended this analysis to the university context by upholding acts of censorship under Hazelwood’s reasonableness standard. This Note argues that university officials should not be given the same level of deference as secondary school officials when regulating student speech. The “material and substantial disruption” test currently provides the most appropriate framework for balancing the competing interests in favor of protecting university students’ speech rights.

[Pages 205-254]
"THEIR PRESERVATION IS OUR SACRED TRUST"-JUDICIALLY MANDATED FREE EXERCISE EXEMPTIONS TO HISTORIC PRESERVATION ORDINANCES UNDER EMPLOYMENT DIVISION V. SMITH
Catherine Maxson

Abstract:  Religious property owners have both successfully and unsuccessfully challenged historic preservation ordinances as burdens on the free exercise of religion. Courts considering this conflict typically rely on Employment Division v. Smith, in which the United States Supreme Court held that neutral laws of general applicability that incidentally burden religion are not subject to strict scrutiny. Ambiguities in Smith, however, have left courts free to use their own interpretive discretion and have made attempts to apply free exercise precedent particularly difficult in the historic preservation context. This Note reviews the historic preservation movement and free exercise jurisprudence, then analyzes cases that have attempted to balance these two often conflicting interests. The Note argues that the strictures of Smith are too rigid, producing results either over- or under-inclusive of free exercise rights. Only through the application of a case by case balancing test can courts adequately adjudicate inevitable free exercise/historic preservation conflicts.