BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 45 2004 Number 4

[Pages 741-828]
BE CAREFUL WHAT YOU WISH FOR: HOW ACCOUNTANTS AND CONGRESS CREATED THE PROBLEM OF AUDITOR INDEPENDENCE
Sean M. O'Connor*

Abstract:  Although corporate fraud is not held in check by our current audit process, in which auditors lack independence from the clients they inspect, numerous attempts to fix this problem have failed. This Article analyzes the history of auditing, which has been neglected in legal scholarship, to argue that the mandatory audit system created the problem of auditor independence. Accountants advocated for the system in order to gain the status of a learned profession; however, they received more than they bargained for. In particular, auditors incurred an obligation to the “investing public,” but this undefined group does not actually control the auditors. Auditors answer to the companies being audited. The resulting conflict of interest has proven to be insur-mountable. This Article argues that the problem will be resolved only by returning to its origins in the federal securities laws of the 1930s and by restructuring the relationships involved in public company audits.

[Pages 829-868]
THE STORY OF PINOCCHIO: NOW I'M A REAL BOY
Theresa A. Gabaldon*

Abstract:  Corporate responsibility has become a matter of great concern after the Enron and WorldCom scandals rocked corporate culture. This Article suggests that corporate irresponsibility stems from the failure of corporations to address the concerns of non-shareholders and the failure of shareholders and regulatory watchdogs to look beneath the corporate surface. Competing schools of thought, such as neoclassical economics, progressive corporate theory, and outsider corporate theory, offer divergent analyses of the corporate responsibility dilemma. Regulatory responses to the crisis of corporate conscience remain untested. This Article suggests that our failure to foresee corporate irresponsibility partly comes from over-reliance on traditional theories of shareholder primacy. Change is unlikely to come from within the corporation, so regulators must look beyond the board of directors to ensure responsible management. This Article proposes criminal liability for corporate indifference to the health and well-being of foreseeable victims of corporate irresponsibility.

[Pages 869-904]
EQUAL PROTECTION THEORY AND THE HARVEY MILK HIGH SCHOOL: WHY ANTI-SUBORDINATION ALONE IS NOT ENOUGH
Kristina Brittenham

Abstract:  In recent years, advocates for youth have begun to support voluntary school segregation as a solution to the problem of inequality in public schools. These advocates are less concerned with different treatment on the basis of classifications like race or sex than with the disadvantages resulting from such classifications. They believe that this approach to inequality, called anti-subordination, provides a better way to achieve equality than does formal equality, the method of treating everyone alike. The introduction of the Harvey Milk High School in New York City, the nation’s first public school established to meet the needs of lesbian, gay, bisexual, transgender, and questioning students and others in crisis, provides a fresh opportunity to examine this equal protection debate. This Note will argue that anti-subordination must be reunited with formal equality through comprehensive programs in integrated schools in order to provide true equal protection for all students.

[Pages 905-942]
HISTORY IS NOT ENOUGH: USING CONTEMPORARY JUSTIFICATIONS FOR THE RIGHT TO KEEP AND BEAR ARMS IN INTERPRETING THE SECOND AMENDMENT
Robert A. Creamer

Abstract:  Over two hundred years after James Madison wrote the Second Amendment to the U.S. Constitution, there is still little agreement on the meaning of “the right of the people to keep and bear arms.” The debate over this provision has focused on divining the intent of the Framers to determine what was meant by the “militia” in the eighteenth century. Interpreting the past, however, has failed to resolve the issue, evidenced by the fact that both those in favor of and those opposed to a private right to keep and bear arms point to the same authorities for support. This Note argues that rather than continually re-examining historical sources, we should determine whether there are contemporary justifications supporting the individual right of a citizen to keep and bear arms.

[Pages 943-988]
"THROUGH FAULT OF THEIR OWN"- APPLYING BONNER MALL'S EXTRAORDINARY CIRCUMSTANCES TEST TO HEIGHTENED STANDARD OF REVIEW CLAUSES
Bradley T. King

Abstract:  Since 2001, the federal circuit courts of appeals have remained split on the propriety of enforcing heightened standard of review clauses contained in arbitration agreements governed by the Federal Arbitration Act (the “FAA”). After reviewing the history of arbitral awards and the text, structure, and legislative history of the FAA as well as the U.S. Supreme Court’s interpretation of the FAA, this Note proposes a resolution to the heightened-review circuit split, which is consistent with the FAA’s pro-arbitration policy and U.S. Supreme Court precedent. This Note’s proposed resolution would require courts to reject heightened-review clauses through application of the extraordinary circumstances test that the U.S. Supreme Court developed in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership. This Note argues that the adoption of Bonner Mall’s extraordinary circumstances test will protect judicial integrity and preserve arbitration as a viable litigation alternative for the entire legal community.