The November issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as three student notes. The full texts are also available on the BCLR website.
Corporate Tax Avoidance and Honoring the Fiduciary Duties Owed to the Corporation and Its Stockholders by Eric C. Chaffee and Karie Davis Nozemack
Corporate tax avoidance is a highly contested issue at the national and international level. Corporations often argue that under Dodge v. Ford, they are legally required to employ aggressive tax strategies. Professors Eric C. Chaffee and Karie Davis Nozemack argue that this reading of Dodge is incorrect when studied through the fiduciary duties owed to the corporation and its stockholders. Their Article examines a number doctrines that could be used when analyzing of tax avoidance, such as corporate social responsibility, sustainability, and economics.
The Public Interest in Corporate Settlements by Brandon L. Garrett
In this Article, Professor Garrett examines the role of the public interest in judges' consideration of corporate settlement agreements in a variety of legal fields. He argues that judges, though recognizing the necessity of judicial review to protect the public interest, often eschew statutory guidelines in favor of adopting their own concept of the public interest. As a result, equitable considerations often are not given proper weight--for example, when considering whether or not to approve deferred or non prosecution agreements of corporate entities. Professor Garrett argues that judges would benefit from more concrete guidance from statutes, regulations, and judicial rulings on what, precisely, constitutes the public interest.
A Pantomime of Privacy: Terrorism and Investigative Powers in German Constitutional Law by Russell A. Miller
The German Federal Constitutional Court's far-reaching judicial review enables its judges to consider the constitutionality of federal laws in the abstract. One law that recently came under the Constitutional Court's scrutiny was the BKA Act (aimed at preventing terrorism-related activities), which granted broad investigative and surveillance powers to Germany's federal police. The Constitutional Court's "reining-in" of the BKA Act--emphasizing the importance of protecting privacy within one's own home--was welcomed by some as an important fortification of the right to privacy. Critics bemoaned the decision, however, as inadequate and one step closer to the creation of a "German FBI." Professor Miller analyzes the BKA Case in depth, concluding that the Constitutional Court did not go far enough to curb the German federal police power, casting its "privacy" analysis as paying mere lip service to one of Germany's fundamental rights.
Stopping Illegal Fishing and Seafood Fraudsters: The Presidential Task Force's Plan on Tackling IUU Fishing and Seafood Fraud by Thomas Lampert
Seafood fraud and illegal, unregulated, and unreported fishing—practices that lead consumers to eat different species than they ordered—are widespread problems with varied consequences. They hurt consumers financially, distort markets, pose health risks, and threaten the sustainability of the oceans. In his Note, Thomas Lampert analyzes recent efforts to curb these problems in both the United States and abroad. He argues that although recent policies are a good start, in order to effectively combat the issues, the United States and European Union should align the specifics of their two policies.
Changing Welfare as We Know It, Again: Reforming the Welfare Reform Act to Provide All Drug Felons Access to Food Stamps by Meghan Looney Paresky
In 1996, President Clinton enacted the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”) to “end welfare as we know it.” This law included a provision that places a lifetime ban on food stamps and other welfare benefits for individuals who have been convicted of a drug-related felony, and gave states the option to amend or opt out of this provision. The PRWORA drug felony provision disparately impacts minorities and low-income communities, and serves to perpetuate the cycle of recidivism. In her Note, Meghan Looney Paresky argues that Congress must amend the PRWORA to eliminate the drug felony provision altogether, and in the short term should introduce a model reform to promote uniformity across all states with the provision still in place.
The Justice Against Sponsors of Terrorism Act: An Infringement on Executive Power by Dan Cahill
Through the Justice Against Sponsors of Terror Act, Congress amended the exceptions to the Foreign Sovereign Immunities Act, allowing a greater number of suits against foreign nations for their involvement in acts of terror, even when the President has not declared that foreign nation a state sponsor of terror. Dan Cahill argues that in effect, the legislature has granted individual litigants and the courts the ability to mold America's stance on another nation's responsibility for terror, a foreign affairs powers typically and rightly exercised by the executive. He argues that permitting this disjointed foreign relations decision making, by lesser informed decision makers, threatens to upend the unity of America’s message to the world and disrupt the President’s role as America’s constitutionally empowered representative to foreign nations. This disruption violates long standing separation of powers principles because it is an improper infringement by the legislature on a power more properly entrusted to the executive.