BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 45 2004 Number 3

[Pages 499-594]
THE FIVE FACES OF FREEDOM IN AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT
J.L. Hill*

Abstract:  In the deepest sense, this Article seeks to bridge the gap between philosophy, political theory, and constitutional law. It examines how our constitutional tradition conceives of freedom, perhaps the most important value in the American legal order. It discusses five distinct though intertwined traditions, each drawn from a different philosophical theory of freedom. These five faces of freedom are (1) the “positive” ideal—freedom as the right to vote and to take part in government, (2) the “negative” ideal—freedom from constraint or government interference, (3) the progressive ideal, (4) self-individuating liberalism—freedom as the right to discover, develop, and express one’s core identity, and (5) the “homeostatic-communitarian” ideal—freedom as inhering in a network of communal social relations located within a broader pluralistic society. Each Part provides an overview of the philosophical foundation of one of the faces of freedom and then traces its constitutional development. The Article concludes by discussing how the contours of freedom have changed over the course of our history.

[Pages 595-618]
SPEAK NOW: PROGRESSIVE CONSIDERATIONS ON THE ADVENT OF CIVIL MARRIAGE FOR SAME-SEX COUPLES
Kara S. Suffredini* Madeleine V. Findley**

Abstract:  Amidst the political and legal storm surrounding the Massachusetts Supreme Judicial Court’s recent groundbreaking decision in Goodridge v. Department of Public Health, which extends marriage rights to same-sex couples in Massachusetts, this Essay seeks to maintain the debate questioning the supremacy of marriage as the ideal family unit. The Essay presents examples of the subordinating effects that marriage laws sometimes have on women, people of color, and the poor; and it explores specific problematic possibilities that the new application of marriage laws may hold for lesbian, gay, bisexual, and transgender individuals. The Essay contends that marriage, although providing significant gains for some, is not a panacea. The Essay then proposes a progressive vision for the separation of certain important benefits from their traditional association with marriage and for the diversification of forms of partnership and household recognition.

[Pages 619-666]
HUMAN-NONHUMAN CHIMERAS: A REGULATORY PROPOSAL ON THE BLURRING OF SPECIES LINES
Nicole E. Kopinski

Abstract:  The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act’s provisions and modification to its statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada’s legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.

[Pages 667-704]
THE POWER BEHIND THE PROMISE: ENFORCING NO CHILD LEFT BEHIND TO IMPROVE EDUCATION
Amy M. Reichbach

Abstract:  Despite the U.S. Supreme Court’s recognition in 1954, in Brown v. Board of Education, that education is of paramount importance, six million middle and high school students are still in danger of being left behind. Less than seventy-five percent of eighth graders, fifty percent in urban schools, are graduating from high school within five years. Advocates for educational equity have appealed to the courts, achieving limited success. They have also turned to the legislature, which most recently enacted the No Child Left Behind Act of 2001 (“NCLB”). Thus far, however, the federal government has not enforced NCLB adequately. This Note argues that to protect the benefits NCLB confers upon them, parents of children attending failing schools must explore their options for private enforcement. Given the Court’s decisions within the past three years narrowing implied private right of action and  1983, the most promising theory for enforcement of NCLB is third-party beneficiary theory.

[Pages 705-740]
THE COPYRIGHTABILITY OF LEGAL COMPLAINTS
Lisa P. Wang

Abstract:  In 2002, a renowned U.S. class action law firm began placing copyright notices on its legal complaints. Cease-and-desist letters have been filed against several firms that lifted language off of the copyrighted complaints. Although no litigation has ensued to determine whether legal complaints are copyrightable, this Note asserts that legal complaints are copyrightable subject matter under the Copyright Act of 1976 despite the limitations of the idea-expression dichotomy, merger doctrine, useful article doctrine, and fair use defense. This Note focuses on the originality requirement of the Copyright Act, as interpreted through U.S. case law, and contends that legal complaints exhibit sufficient originality to warrant copyright protection.