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Full-Text Articles in Law

Lower Court Originalism, Ryan C. Williams Dec 2022

Lower Court Originalism, Ryan C. Williams

Boston College Law School Faculty Papers

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While this perspective …


Michael Perry's Integrative Political Visioin, M. Cathleen Kaveny Jun 2022

Michael Perry's Integrative Political Visioin, M. Cathleen Kaveny

Boston College Law School Faculty Papers

My purpose in the Essay is to explore the integrative nature of Perry’s writings. Perry’s work highlights and acknowledges the communally informed moral-political judgments that are at stake in Fourteenth Amendment jurisprudence. Perry’s ability to draw on different sources and perspectives allows him to cut across rigid jurisprudential and ideological lines in his approach to constitutional controversies, such as abortion and same-sex marriage. In so doing, he may be able to reach the significant portion of Americans in the political and moral middle who do not line up fully behind either side in the culture wars.


Have Disclosures Kept Up With The Big Data Revolution? An Empirical Test, Uri Benoliel Jun 2022

Have Disclosures Kept Up With The Big Data Revolution? An Empirical Test, Uri Benoliel

Boston College Law Review

Given the significant social benefits of the big data revolution, an important empirical legal question arises: are government-mandated disclosures designed in a way that allows society to harness the power of the big data that they include? Mandated disclosures normally include an overwhelming volume of data that can be difficult to read and understand for the average individual consumer. If, however, the voluminous data included in the disclosures is machine-readable, such that it can be automatically extracted and processed by computers, disclosures might actually assist consumers in making better-informed buying decisions. Although legal scholars have extensively studied the level of …


Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull Jun 2022

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

Boston College Law Review

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments …


Data Protection In The Digital Economy: Legislating In Light Of Sorrell V. Ims Health Inc., Zachary Schapiro Jun 2022

Data Protection In The Digital Economy: Legislating In Light Of Sorrell V. Ims Health Inc., Zachary Schapiro

Boston College Law Review

Consumers overwhelmingly believe that companies do not do enough to protect their personal data. As Congress considers federal data protection legislation, it must ensure that any proposed legislation comports with the First Amendment. In 2011, in Sorrell v. IMS Health Inc., the U.S. Supreme Court determined that a Vermont law prohibiting the use of physician-prescribing records for marketing purposes violated the First Amendment. At the heart of Sorrell is that shared data, unlike a traditional commodity like oil, conveys information and is thus First Amendment-protected speech. Since Sorrell, the use and retention of data, specifically personal data, has …


Redemption Localism, Daniel Farbman Jun 2022

Redemption Localism, Daniel Farbman

Boston College Law School Faculty Papers

In the decades after the end of the Civil War, avowed white supremacists across the South sought to “redeem” their state and county governments from the clutches of the hated “radicals” who had taken control during Reconstruction. These Redeemers developed an approach to local power and local control that served their broader political goal of reestablishing white supremacist rule. In their effort to ensure that white citizens were not subjected to “negro rule,” they developed a “Redemption Localism” that consistently sought to limit local power, curtail local democracy, and defund or eliminate local services. This Article tells the story of …


Employee Noncompetition Laws And Practices: A Massachusetts Paradigm Shift Goes National, Jerry Cohen, Karen Breda, Thomas J. Carey Jr. Jun 2022

Employee Noncompetition Laws And Practices: A Massachusetts Paradigm Shift Goes National, Jerry Cohen, Karen Breda, Thomas J. Carey Jr.

Boston College Law School Faculty Papers

After 10 years of legislative gestation, the Great and General Court passed, and Governor Charlie Baker signed, the Massachusetts Noncompetition Agreement Act (“MNAA” or “Act”), G.L. c. 149, § 24L added by St. 2018, c. 228, § 21, effective prospectively only (§ 71) for agreements entered into on or after Oct. 1, 2018. The Act dramatically reduces the number of Massachusetts employees who can be subjected to an enforceable noncompetition agreement, and even when such agreements are permitted, employees are afforded stronger substantive and procedural protections than in the past, while employers are limited to substantially reduced post-employment restrictions. The …


Rethinking Foreign Affairs Deference, Elad D. Gil May 2022

Rethinking Foreign Affairs Deference, Elad D. Gil

Boston College Law Review

How should courts handle cases that implicate foreign relations or national security? What weight should courts give to the executive branch’s view of the law in these matters? To date, one can identify in the jurisprudence of the U.S. Supreme Court no less than four theoretical approaches—varying by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach has been criticized fiercely for either abdicating the constitutional duty of the courts or obstructing the nation’s pursuit of its security and foreign policy objectives. Absent a clear principle …


The Not-So-Straight First Amendment: Why Prohibitions On Conversion Therapy For Children Survive Strict Scrutiny, Samuel G. Bernstein May 2022

The Not-So-Straight First Amendment: Why Prohibitions On Conversion Therapy For Children Survive Strict Scrutiny, Samuel G. Bernstein

Boston College Law Review

In November 2020, the United States Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton (Otto II), became the first federal appellate court to hold that bans on Sexual Orientation Change Efforts (“SOCE”) therapy, also known as conversion therapy, for minors are unconstitutional restrictions of freedom of speech. In reviewing the bans under the strict scrutiny standard, the Eleventh Circuit’s decision in Otto departs from the other circuits’ decisions not only in outcome but also in analysis. The Eleventh Circuit, following recent Supreme Court’s decisions, concluded that courts must apply strict scrutiny and that …


Medicare "Bankruptcy", Matthew B. Lawrence May 2022

Medicare "Bankruptcy", Matthew B. Lawrence

Boston College Law Review

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to …


Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Laura C. Hoffman, Megan S. Wright, Joseph J. Fins May 2022

Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Laura C. Hoffman, Megan S. Wright, Joseph J. Fins

Boston College Law Review

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the …


Reflections From The Brink Of Tax Warfare: Developing Countries, Digital Services Taxes, And An Opportunity For More Just Global Governance With The Oecd’S Two-Pillar Solution, Connor L. Smith May 2022

Reflections From The Brink Of Tax Warfare: Developing Countries, Digital Services Taxes, And An Opportunity For More Just Global Governance With The Oecd’S Two-Pillar Solution, Connor L. Smith

Boston College Law Review

Starting in 2016, many countries enacted digital services taxes (DSTs), a turnover tax that applies to digital companies regardless of whether they have a physical presence in the taxing jurisdiction. After the Organization for Economic Cooperation and Development’s Inclusive Framework reached final agreement on its two-pillar solution to tax challenges in a global digital economy, these unilateral measures went on pause. This Note reflects on the recent DST phenomenon, reconceptualizing the DST debate as part of a broader discourse on global governance and globalization. Although DSTs first emerged in developed countries in the European Union, this Note analyzes developing country …


Motion Denied: Procedural Pitfalls Prevail In Motions To Remand, Blair Rotert May 2022

Motion Denied: Procedural Pitfalls Prevail In Motions To Remand, Blair Rotert

Boston College Law Review

On May 6, 2021, in Shipley v. Helping Hands Therapy, the U.S. Court of Appeals for the Eleventh Circuit held that non-jurisdictional remands must be based on timely motions to remand that assert procedural defects. This holding revisited a split between the U.S. Court of Appeals for the Ninth and Fifth Circuits regarding the proper interpretation of 28 U.S.C. § 1447(c)’s non-jurisdictional remand provision. The Ninth Circuit—much like the Eleventh Circuit but with different reasoning—found that both the raising of the procedural defect and the motion to remand must be timely, whereas the Fifth Circuit held that only the …


Stuck Between A Fiduciary Rock And A Prudential Hard Place: The Eighth Circuit’S Approach To Erisa’S Duty Of Prudence, Nicholas J. Whitten May 2022

Stuck Between A Fiduciary Rock And A Prudential Hard Place: The Eighth Circuit’S Approach To Erisa’S Duty Of Prudence, Nicholas J. Whitten

Boston College Law Review

On July 27, 2020, in Allen v. Wells Fargo & Co., the U.S. Court of Appeals for the Eighth Circuit held that plaintiffs who bring an imprudence claim under the Employment Retirement Income Security Act against a fiduciary of an employee stock ownership plan (ESOP) alleging that the fiduciary failed to act on negative inside information do not meet their pleading burden. In doing so, the Eighth Circuit agreed with three other federal circuit courts that an imprudence claim predicated on an ESOP fiduciary’s failure to disclose negative information is insufficient to survive a motion to dismiss. Only the …


"Sexual Activity": What Qualifies Under 18 U.S.C. § 2422?, Max Doherty May 2022

"Sexual Activity": What Qualifies Under 18 U.S.C. § 2422?, Max Doherty

Boston College Law Review

On May 13, 2021, in United States v. Dominguez, the U.S. Court of Appeals for the Eleventh Circuit joined a pre-existing circuit split regarding the meaning of “sexual activity” under 18 U.S.C. § 2422 and whether that term requires physical contact between the defendant and the victim. The statute prohibits individuals from coercing or enticing others to participate in illegal sexual activity, including when the victim is a minor. The U.S. Court of Appeals for the Fourth and Seventh Circuits previously reached opposite interpretations of the phrase’s meaning. The court in Dominguez agreed with the Fourth Circuit and held …


Ransomware, Cyber Sanctions, And The Problem Of Timing, Christine Abely May 2022

Ransomware, Cyber Sanctions, And The Problem Of Timing, Christine Abely

Boston College Law Review

This essay argues that the lack of a federal blanket prohibition against ransomware payments undermines the purpose and effectiveness of the U.S. sanctions regime. The U.S. cyber-related sanctions program suffers from an essential problem of timing: often payments to malicious cyber actors are not prohibited until those actors have been named to the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Yet those actors generally are not so designated until they have been identified as malicious through a completed or attempted attack. Further, the time …


Nysrpa V. Bruen And The Future Of The Sensitive Places Doctrine: Rejecting The Ahistorical Government Security Approach, Carina Bentata Gryting, Mark Anthony Frassetto May 2022

Nysrpa V. Bruen And The Future Of The Sensitive Places Doctrine: Rejecting The Ahistorical Government Security Approach, Carina Bentata Gryting, Mark Anthony Frassetto

Boston College Law Review

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since …


“Dueling” Experts And The False Claims Act: Weaponizing Legal Falsity To Combat Hospice Fraud, Kristen Parnigoni May 2022

“Dueling” Experts And The False Claims Act: Weaponizing Legal Falsity To Combat Hospice Fraud, Kristen Parnigoni

Boston College Law Review

In 2020, in United States ex rel. Druding v. Care Alternatives, the United States Court of Appeals for the Third Circuit advanced a broad interpretation of “falsity” under the federal False Claims Act (FCA) to allow conflicting medical opinions on a patient’s medical prognosis as evidence of false certification for hospice eligibility. In doing so, the court rejected a blanket rule that clinical judgments are immune from legal challenge and dismissed an “objective falsehood” requirement because it inappropriately conflated elements of the statute. The holding has important implications in industries with high risk for fraud, particularly the for-profit hospice …


Calling Strikes: The Sixth Circuit’S Interpretation Of The Prison Litigation Reform Act, Emily O'Hara May 2022

Calling Strikes: The Sixth Circuit’S Interpretation Of The Prison Litigation Reform Act, Emily O'Hara

Boston College Law Review

On May 3, 2021, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit held that a court’s non-binding “strike” recommendation under the Prison Litigation Reform Act (PLRA) did not violate the PLRA or Article III of the United States Constitution. Courts agree that binding strikes are impermissible, but disagree on the underlying reasoning. The Sixth Circuit reasoned that the PLRA, which revokes in forma pauperis filing from indigent prisoner-litigants after three qualifying dismissals, renders binding strikes impermissible before a prisoner accrues three strikes. By resolving the issue using the PLRA, the Sixth Circuit found …


A Hacker “May” Have Accessed Your Data: Can Victims Of Data Breaches Sue Before Alleging Misuse?, John Landzert May 2022

A Hacker “May” Have Accessed Your Data: Can Victims Of Data Breaches Sue Before Alleging Misuse?, John Landzert

Boston College Law Review

On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of …


Procedural Pitfalls: The Eleventh Circuit Holds That The Sentencing Commission’S Policy Statement On Sentence Reduction Is Binding On Defendant-Filed Motions, Allison Cheney May 2022

Procedural Pitfalls: The Eleventh Circuit Holds That The Sentencing Commission’S Policy Statement On Sentence Reduction Is Binding On Defendant-Filed Motions, Allison Cheney

Boston College Law Review

On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) …


There's No Place Like Dot-Com: Are Websites Places Of Public Accommodation Under Title Iii Of The Ada?, Michele Astor-Pratt Apr 2022

There's No Place Like Dot-Com: Are Websites Places Of Public Accommodation Under Title Iii Of The Ada?, Michele Astor-Pratt

Boston College Law Review

On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held …


Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahey Apr 2022

Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahey

Boston College Law Review

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED …


Young Guns: The Constitutionality Of Raising The Minimum Purchase Age For Firearms To Twenty-One, Zachary S. Halpern Apr 2022

Young Guns: The Constitutionality Of Raising The Minimum Purchase Age For Firearms To Twenty-One, Zachary S. Halpern

Boston College Law Review

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High …


Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca J. Hamilton Apr 2022

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca J. Hamilton

Boston College Law Review

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platform-enabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …


Safe Injection Facilities: Reconsidering American Drug Policy, Evelyn L.A. Jackson Apr 2022

Safe Injection Facilities: Reconsidering American Drug Policy, Evelyn L.A. Jackson

Boston College Law Review

On January 12, 2021, in United States v. Safehouse, the U.S. Court of Appeals for the Third Circuit held that supervised injection facilities—sites where medical professionals monitor injection drug use—violate the Crack House Statute. The legality of supervised injection facilities was a matter of first impression at the circuit level. Research shows that supervised injection facilities reduce overdose deaths and the spread of infection and are important harm reduction measures for combatting the opioid epidemic. The Third Circuit held that these programs violate the Crack House Statute, 21 U.S.C. § 856(a)(2), because they act with the statutorily proscribed purpose …


Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg Apr 2022

Indiana Jones And The Illicit Excavation And Trafficking Of Antiquities: Refining Federal Statutes To Strengthen Cultural Heritage Protections, Marina F. Rothberg

Boston College Law Review

Most nations consider the protection of cultural material, such as historical monuments, archaeological sites, and antiquities, to be of utmost consequence. Yet, despite the near-universal importance of safeguarding cultural heritage, domestic protections for cultural material in the United States tend to be difficult to interpret. These ambiguities and gaps allow for continued exploitation and illicit trafficking of cultural heritage. This Note focuses on the legal structures in the United States that safeguard indigenous cultural material. After briefly discussing the rationale behind safeguarding objects of heritage, this Note explores the dominant federal statutes that protect cultural material: the National Historic Preservation …


Accountable To None? Challenging Sovereign Immunity Through The Trafficking Victims Protection Act, Heather Odell Apr 2022

Accountable To None? Challenging Sovereign Immunity Through The Trafficking Victims Protection Act, Heather Odell

Boston College Law Review

Although amendments to the Trafficking Victims Protection Act (TVPA) have opened the door to greater corporate liability, government liability under the TVPA remains murky. A critical barrier that plaintiffs suing government entities confront is the broad protection from suit that states enjoy under the Eleventh Amendment. One of the few exceptions to this protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. It further held that this valid source includes Congress’s …


Transnational Migration Deterrence, Anita Sinha Apr 2022

Transnational Migration Deterrence, Anita Sinha

Boston College Law Review

The governance of global migration increasingly relies on what critical migration scholarship refers to as externalized control. Externalization encompasses limiting human mobility through the imposition of migration control measures by transit states, as well as by states that are geographically proximate to destination states. Destination states are at a minimum complicit in the creation and operation of these externalized migration control systems. To capture this phenomenon, this Article offers a reconceptualization of externalization as transnational migration deterrence. The objective of this nomenclature is to provide a framework that highlights the role of destination states, to build a lexicon of accountability …


Sovereign Immunity Or: How The Federal Government Learned To Stop Worrying And Love The Discretionary Function Exception, Tristen Rodgers Apr 2022

Sovereign Immunity Or: How The Federal Government Learned To Stop Worrying And Love The Discretionary Function Exception, Tristen Rodgers

Boston College Law Review

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. …