BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 43 2002 Number 4

[Pages 783-818]
THE SUPREME COURT'S HISTORICAL ERRORS IN CITY OF BOERNE V. FLORES
Ruth Colker*

Abstract:  This Article addresses the quality of the Supreme Court’s historical argument in interpreting Section Five of the Fourteenth Amendment in the 1997 case City of Boerne v. Flores. The Boerne Court referred to three historical moments relevant to understanding the meaning of Section Five. Namely, Congress’s consideration of an early version of the Fourteenth Amendment in late 1865 and early 1866, the congressional debate on the Fourteenth Amendment from April to June of 1866, and the discussion of the Ku Klux Klan Act in 1871. Ultimately, the Court made several fundamental errors in discussing the history of the ratification of Section Five. The Court’s narrow construction of Congress’s authority under Section Five can therefore not be justified by the history of the Fourteenth Amendment.

[Pages 819-863]
THE RHETORIC OF LEGAL BACKFIRE
Robert A. Hillman*

Abstract:  This Article focuses on legal backfire claims. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended. Legal backfire claims are pervasive, yet potentially misleading and harmful argumentation used primarily to undermine existing law (or policy) or to forestall the enactment of new law. This Article analyzes many examples of legal backfire to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back, and that actual legal backfires are much more rare (or at least unproven) than use of the rhetoric would suggest. This Article also addresses a much more basic problem: the challenges to effective lawmaking and the limitations of techniques to evaluate the effects of law make an accurate assessment of law problematic. Ultimately, this Article suggests that lawmakers should proceed with caution when dealing with legal backfire claims because critics of laws almost invariably author these claims, the claims are rhetorically charged, and the claims themselves are extraordinary.

[Pages 863-934]
PATHOLOGIES AT THE INTERSECTION OF THE BUDGET AND TAX LEGISLATIVE PROCESSES
Cheryl D. Block*

Abstract:  Recently, Congress utilized a new gimmick in its budget legislative process. Under “pay as you go” (PAYGO) budget rules, Congress had used the repeal of installment sale reporting for certain taxpayers to “pay for” revenue-losing provisions in its budget deal with the administration; the following year, however, Congress “repealed the repeal” of the installment sale provision, enabling new spending and tax cuts not included in the earlier budget deal and not paid for with appropriate offsets. Although such gimmicks are not uncommon, the installment sale episode reflected pathologies engrained at the intersection of the current federal budget and tax legislative processes. This Article examines those pathologies, their origins, and their effects on federal tax and budget policy. The Article then reviews the installment sale episode as a breach of Congress’s contract with itself, emblematic of the pathologies and the harm they cause to genuine policy considerations. As Congress considers the future of its budget offset rules, this Article also suggests reforms that would re-emphasize the democracy-oriented goals of the budget legislative process.

[Pages 935-972]
VESTED RIGHTS AND ZONING: AVOIDING ALL-OR-NOTHING RESULTS
Karen L. Crocker

Abstract:  In real estate development, courts and legislatures use the vested rights doctrine to determine whether local government should be allowed to enforce newly enacted zoning ordinances against landowners. As real estate development projects continue to increase in scope and expense, and as zoning regulations become more complex and sensitive to environmental awareness, the vested rights debate will remain a contentious issue in land use law. The three dominant vested rights rules in use today generally assume that vested rights protection requires an all-or-nothing result, forcing the debate to revolve almost solely around timing: should vested rights protection be granted now or later? This outcome affords no compromise; either developers get all the protection from new regulations they want and local governments get no flexibility to adapt projects to evolving public interests, or local governments get all the flexibility they want, and developers risk losing their projects altogether. This Note critiques the three major approaches and suggests that one way to add more flexibility to the current vesting scheme is to expand or contract the scope of protection granted based on the breadth of developers’ disclosure.

[Pages 973-1008]
THE CATALYST THEORY MEETS THE SUPREME COURT-COMMON SENSE TAKES A VACATION
Kyle A. Loring

Abstract:  In 2001, in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court of the United States eliminated the catalyst theory from the definition of prevailing party in relation to two federal statutes. In doing so, the Court severely restricted the opportunities for plaintiffs to collect attorney’s fees from defendants who change their behavior to meet the plaintiffs’ claims without fully adjudicating those claims. This Note examines the history of the catalyst theory and prevailing party decisions, as well as the impact of Buckhannon on fee-shifting, and argues that a permanent rejection of the catalyst theory would dramatically chill the vindication of civil and environmental rights by plaintiffs facing costly litigation. This Note concludes that Congress should enact legislation that preserves the catalyst theory and that, in the meantime, courts should distinguish the fee-shifting provisions at issue in Buckhannon and thus preserve the catalyst theory in other statutory contexts.