BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 44 2003 Number 3

[Pages 689-732]
PRIESTLEY V. FOWLER (1837) AND THE EMERGING TORT OF NEGLIGENCE
Michael Ashley Stein*

Abstract:  Priestly v. Fowler has long been noted as the source of the doctrine of common employment. This Article, however, argues that the case is better understood in the context of the then-emerging independent tort of negligence—specifically, as an unsuccessful attempt to require of masters a duty of care towards their servants. The Article re-examines the facts, arguments, personalities, and various reported versions of the case in tracing the effort to establish a new duty of care. The Article traces, as well, to another case, Hutchinson v. York, the true origins of the common employment doctrine. Finally, the Article compares the perspectives of nineteenth century authorities to those of modern writers in establishing how Priestly came to be detached from its true significance.

[Pages 733-788]
RISK AND REGULATION: U.S. REGULATORY POLICY ON GENETICALLY MODIFIED FOOD AND AGRICULTURE
Emily Marden*

Abstract:  Since the 1980s, successive White House Administrations have shaped federal policy on genetically modified food and agriculture to (1) be product-based, (2) presume low risk from genetic modification, and (3) review GM products under existing federal standards. For two decades, the FDA, USDA, and EPA have erected a regulatory framework for GM products based on these three principles. This Article reviews the history and structure of this framework and the challenges that it has faced as more GM products have entered the market. The Article concludes that the three basic principles of federal GM policy may have to be reconsidered and redirected as genetic modification continues to grow as a force in world commerce.

[Pages 789-824]
SADDLED WITH A LAME HORSE? WHY STATE CONSUMER PROTECTION LAWS CAN BE THE BEST PROTECTION FOR DUPED HORSE PURCHASERS
Anne I. Bandes

Abstract:  Many first-time horse purchasers have little experience with the equine industry and are thus vulnerable to the use of deceptive and unfair practices by the more knowledgeable seller. In situations where inexperienced horse purchasers are duped into buying ill or otherwise defective horses, there are two potential claims that purchasers can make for relief: U.C.C. claims or state consumer protection act claims (“CPAs”). Because courts in U.C.C. claims cases tend to focus on the contractual relationship between the parties, inexperienced horse pur-chasers’ relief through the U.C.C. is often limited. Indeed, the goal of the U.C.C. is to regulate relationships between buyers and sellers and to encourage thier freedom to contract. The goal of CPAs, on the other hand, is to address unfair and deceptive trade practices. This Note will argue that duped purchasers should always file CPA claims rather than U.C.C. claims against unscrupulous horse sellers because of the greater protection and broader relief CPAs have to offer.

[Pages 825-862]
OBJECTIVE DECISION MAKING IN LONERGAN AND DWORKIN
Rob Hanson

Abstract:  Critical Legal Scholars argue that judges are unable to make truly objective decisions. This view gained strength in 2000 in Bush v. Gore, when the U.S. Supreme Court decided the presidential election largely along partisan lines. This Note, however, argues that Critical Legal Scholars fail to provide positive, constructive answers to the problems of objective decision making. Alternatively, the Note examines these problems through the philosophies of Bernard Lonergan and Ronald Dworkin. The Note explains both philosophers’ approaches to objective decision making, then examines those approaches in the context of Bush v. Gore. The Note concludes that Lonergan’s philosophy, though not designed specifically for legal thinking, provides the stronger means for understanding and achieving objective judicial decision making.

[Pages 863-900]
CONSTITUTIONAL RESTRAINTS ON STATE RIGHT OF PUBLICITY LAWS
Jeremy T. Marr

Abstract:  Over the past fifty years, a new intellectual property right called the right of publicity has evolved under state common law. This Note explores a recurring concern hinted at by several lower courts and dissenting opinions: that current publicity laws offend parts of the Constitution beyond the First Amendment and the Copyright Clause. The existing hodgepodge of state statutory and common law that makes up the right of publicity appears to be a minefield of constitutional hazards. Courts must consider a variety of First Amendment, Copyright Clause, Commerce Clause, Due Process Clause, and Full Faith and Credit Clause issues when resolving publicity rights cases. This Note argues that Congress could simplify this area of the law considerably for plaintiffs, defendants, and courts by creating a preemptive federal right of publicity. Alternatively, the right could remain state-based and still avoid these issues through other approaches.

[Pages 901-946]
THE ANONYMOUS ACCUSED: PROTECTING DEFENDANTS' RIGHTS IN HIGH-PROFILE CRIMINAL CASES
Jaime N. Morris

Abstract:  The public’s interest in high-profile crimes and the media’s coverage of high-profile trials have significantly increased over the past fifty years, raising significant concerns about a high-profile defendant’s right to a fair trial. This Note examines how pretrial publicity can affect the fairness of a high-profile criminal case and how courts have attempted to protect a high-profile defendant’s Sixth Amendment right to a fair trial while still assuring the media’s First Amendment right to freedom of the press. Specifically, the Note discusses and analyzes court-made remedies as well as new remedies scholars have proposed to protect a high-profile criminal defendant’s right to a fair trial. Finding such remedies ineffective, the Note considers whether defendant anonymity, which courts can apply in civil trials, could be an effective protection of a high-profile defendant’s right to a fair trial.