Boston College Law Review
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Open Access journal
ISSN (Print) 0161-6587
Published by Boston College [8 journals]
- Good Things Don't Come to Those Forced to Wait: Denial of a
Litigant's Request to Proceed Anonymously Can Be Appealed Prior to
Final Judgment in the Wake of Doe v. Village of Deerfield
Authors: Chloe Booth
Abstract: On April 12, 2016, in Doe v. Village of Deerfield, the United States Court of Appeals for the Seventh Circuit held that a denial of a motion to proceed anonymously is an immediately appealable order under the collateral order doctrine. The Seventh Circuit joined the Fourth, Fifth, Ninth, Tenth and Eleventh Circuits in holding that this type of order, examined categorically, satisfies the rigorous requirements of the collateral order doctrine. Allowing immediate review of this type of order implements a practical construction of the traditional final judgment rule that the United States Courts of Appeals can only review orders upon entry of a final judgment on the merits of a case from a United States District Court. This Comment argues that the Seventh Circuit correctly decided to join the other circuits’ decisions to allow for the immediate appeal of a denial of a motion to proceed anonymously. To rule otherwise would result in a party’s loss of a right that would be irremediable upon final appellate review. Additionally, the decision is likely to have an effect on the proliferation of cases dealing with the First Amendment’s free speech protections and anonymous speech on the Internet.
PubDate: Tue, 18 Apr 2017 08:08:50 PDT
- Creating Confusion Rather Than Clarity: The Sixth Circuit's (Lack of)
Decision in Tree of Life Christian Schools v. Upper Arlington
Authors: Lindsey Edinger
Abstract: There is currently a split among five federal circuits as to what constitutes a secular comparator to a religious assembly or institution under the equal terms provision of the Religious Land Use and Institutionalized Persons Act. Stemming from this initial split, courts have further divided as to what is necessary to establish a prima facie case for an equal terms claim. On May 18, 2016, the U.S. Court of Appeals for the Sixth Circuit in Tree of Life Christian Schools v. Upper Arlington became the most recent circuit to address the equal terms provision. Rather than providing a clear articulation of the equal terms provision, however, the Sixth Circuit refused to officially adopt a position regarding the circuit split. This Comment argues that in abstaining from formally expressing a legal standard for determining violations of the equal terms provision, the Sixth Circuit shirked its appellate duty to create clarity and encourage uniformity.
PubDate: Tue, 18 Apr 2017 08:08:46 PDT
- Third Circuit Confirms the Class Arbitration "Clear and Unmistakable"
Standard in Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, Dealing a
Blow to Consumers and Employees
Authors: Caitlin Toto
Abstract: Whether class action is available in an arbitration proceeding is a highly controversial topic with implications for all parties bound by such clauses. Due to the high stakes of class action arbitrability, it is essential that a neutral decisionmaker determine this question. Whether this decisionmaker is the court or the arbitrator, however, is contested and unresolved by the U.S. Supreme Court. Although undetermined by our highest court, the U.S. Court of Appeals for the Third Circuit has addressed this question. In Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, the Third Circuit affirmed that the availability of class arbitration is a question for the courts, unless there is clear and unmistakable language within the arbitration clause delegating such a power to the arbitrators. Further, the court held that an incorporation of the American Arbitration Association rules is not a clear and unmistakable delegation. Although this opinion incentivizes contract clarity, it also ignores the uneven bargaining power and divergent interests between parties in modern mandatory arbitration agreements, handing a windfall victory for corporations.
PubDate: Tue, 18 Apr 2017 08:08:43 PDT
- Weaponizing Citizen Suits: Second Circuit Revises the Burden of Proof for
Proving Sham Citizen Petitions in Apotex v. Acorda Therapeutics
Authors: Franklin Liu
Abstract: In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim under the Sherman Act based on sham litigation. By contrast, in 2009, in In re DDAVP Direct Purchaser Antitrust Litigation, the Second Circuit held that precisely such evidence was sufficient to state a Sherman Act claim. This Comment argues that the Second Circuit’s revision of the burden of proof for showing a sham citizen suit incentivizes brand-name drug companies to file sham citizen suits as a means to extend their monopolies, which would harm both generic drug manufacturers and the American public. Given the competitive and public health ramifications associated with regulating prescription drugs, it is crucial that U.S. courts give sufficient weight to the underlying policies behind consumer-protection statutes such as the Hatch-Waxman Act and the Sherman Act in order to avoid unintentionally harming the public.
PubDate: Tue, 18 Apr 2017 08:08:39 PDT
- The Role of Antitrust Principles in Patent Monopolies: The Third Circuit
Applies Antitrust Scrutiny to No-AG Patent Settlements in Smithkline
Authors: Meghan Fay
Abstract: On June 26, 2015, in King Drug Co. of Florence v. Smithkline Beecham Corp., the U.S. Court of Appeals for the Third Circuit held that no-authorized generic agreements (“no-AG agreements”), in which a pioneer pharmaceutical manufacturer agrees not to introduce a generic drug, are subject to antitrust scrutiny under the Sherman Act. This Comment argues that the Third Circuit correctly extended the U.S. Supreme Court decision in Federal Trade Commission v. Actavis to non-cash settlement agreements. In Actavis, the Court held that a “reverse-payment settlement,” which compensates a generic manufacturer to delay market entry, creates monopolistic consequences and is subject to antitrust scrutiny. To rule otherwise would deter manufacturers from introducing generic drugs into the pharmaceutical market and, consequently, restrict the amount of lower cost generic drugs available to consumers.
PubDate: Tue, 18 Apr 2017 08:08:35 PDT
- Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting
Authors: Amelia M. Wirts
Abstract: Studies consistently show that African Americans face more employment scrutiny and negative employment actions than their white coworkers. Recognizing that much of the explicit racism of the twentieth century has given way to subtle and often unconscious discriminatory biases, this Note argues that current Title VII jurisprudence contains the tools and legal distinctions to provide legal redress for this implicit bias. Discriminatory intent, a requisite showing for plaintiffs bringing Title VII disparate treatment claims, should not be understood to require proof of a particular mental state. Instead, the current law should—and could—simply require that plaintiffs demonstrate a causal link between their membership in a protected class and the adverse employment action that they suffered. Discriminatory actions by employers produce costs for society at large and for individual workers. Employers must therefore pay for the harms they cause, even if the employer did so because of implicit biases. Without employer liability for implicit bias and its discriminatory effects, this Note argues that barriers to equal employment opportunities will persist and victims of discrimination will bear the costs of unfair decisions made by employers.
PubDate: Tue, 04 Apr 2017 12:36:11 PDT
- Playing to a New Crowd: How Congress Could Break the Startup Status Quo by
Raising the Cap on the Jobs Act's Crowdfunding Exemption
Authors: Thomas Murphy
Abstract: On October 30, 2015, the Securities and Exchange Commission voted to implement the Jumpstart Our Business Startups (“JOBS”) Act’s exemption for crowdfunded securities, which became effective on May 16, 2016. Crowdfunding technology allows any entrepreneur with an Internet connection the opportunity to pitch an idea to a community of investors, which could revolutionize the market for early-stage startup financing. That market has largely adhered to a status quo in which the strength of an entrepreneur’s network is nearly as important as his or her idea—a dynamic that is especially difficult for female and minority entrepreneurs who have been largely excluded from traditional sources of early-stage funding. Crowdfunding may offer a solution. The JOBS Act, however, caps the amount that an entrepreneur can raise with the crowdfunding exemption at $1 million annually. Given how much capital it takes to launch a successful startup, this cap could prevent crowdfunding from truly benefitting entrepreneurs. This Note examines the startup financing landscape, crowdfunding’s revolutionary potential, and securities regulation laws. Further, this Note argues that Congress should raise the cap on the JOBS Act’s crowdfunding exemption to $5 million annually so that entrepreneurs relying on it can more likely compete with their peers who have easier access to traditional startup financing.
PubDate: Tue, 04 Apr 2017 12:36:07 PDT
- The Yates Memo: DOJ Public Relations Move or Meaningful Reform That Will
End Impunity for Corporate Criminals?
Authors: Christopher Modlish
Abstract: On September 9, 2015, former Deputy Attorney General Sally Yates issued a memorandum (the “Yates Memo”) in an attempt to address the Department of Justice’s (“DOJ”) seeming inability to prosecute the individuals responsible for corporate crime and misconduct. The memo announced new DOJ policy regarding individual accountability for corporate fraud, wrongdoing, and other misconduct. Specifically, it identified six key policies meant to enable DOJ prosecutors to more effectively prosecute the individuals responsible for corporate misconduct. The memo, however, did not address the biggest obstacle to holding individuals accountable for criminal corporate conduct—the DOJ’s overuse of deferred prosecution and non-prosecution agreements. This Note argues that, because the Yates Memo did not specifically curtail the overuse of deferred prosecution and non-prosecution agreements, it will not be able to achieve its stated goal of reducing impunity for the individuals responsible for corporate crime. This Note then provides policy suggestions for how the DOJ could further amend its policies to address the overuse of deferred prosecution and non-prosecution agreements.
PubDate: Tue, 04 Apr 2017 12:36:03 PDT
- Guacamole Is Extra but the Norovirus Comes Free: Implementing Paid Sick
Days for American Workers
Authors: Erin Garrity
Abstract: The 1993 Family and Medical Leave Act (“FMLA”) provides eligible workers with twelve weeks of unpaid leave. Because the FMLA excludes most short-term illnesses, workers suffering from the flu or similar illnesses still go to work while sick. This phenomenon, referred to as presenteeism, poses a risk to public health and reduces workplace productivity. Some states and cities have adopted paid sick time laws, but other states have adopted preemption laws prohibiting local paid sick time legislation. The Healthy Families Act (“HFA”), which proposes federally-mandated, employer-provided paid sick days for all employees in businesses of fifteen employees or more, would resolve this battle over paid sick days. Despite being repeatedly re-introduced in Congress over the last decade, the HFA has yet to gain sufficient political momentum to move beyond subcommittee. This Note argues that the HFA, the best means of reducing presenteeism in the workplace, should be re-worked to accommodate businesses’ concerns, including cost and employee abuse.
PubDate: Tue, 04 Apr 2017 12:36:00 PDT
- Closing the Hedge Fund Loophole: The SEC as the Primary Regulator of
Authors: Cary Martin Shelby
Abstract: The 2008 financial crisis sparked a flurry of regulatory activity and enforcement in an attempt to reign in activity by banks, but other institutions have also been identified as potentially threatening to the stability of the financial markets. In particular, several empirical studies have revealed that systemic risk can be created and transmitted by hedge funds. In response to the risk created by hedge funds, Congress granted the Financial Stability Oversight Council (“FSOC”) authority under the Dodd-Frank Act of 2010 to designate hedge funds as Systemically Important Financial Institutions (“SIFIs”). Such a designation would automatically result in stringent capital constraints and limitations on liquidity risk on these non-bank institutions. Yet in over six years since FSOC has been granted this authority, it has failed to identify even one hedge fund as a SIFI. In the face of massive resistance and deregulatory initiatives introduced under the Trump administration, it is highly unlikely to do so in the near future. The inability of FSOC to regulate systemically harmful funds is particularly troubling because several post-financial crisis studies have revealed that systemic risk can still be created and transmitted by hedge funds. Given FSOC’s inability to close this hedge fund loophole, this Article argues that Congress should explore appointing the SEC as the primary regulator of hedge funds because: (1) hedge funds can still pose a systemic threat to the economy; (2) the transparency framework inherent in the federal securities laws can supply a more effective means for mitigating systemic risk than the prudential framework currently mandated for SIFIs; and (3) appointing the SEC in this regard would reduce the fragmentation of the current regulatory structure which has been extended and complicated by the creation of FSOC. Although the federal securities laws are typically used to promote investor protection, this Article posits that enhancing transparency to hedge fund counterparties and investors can decrease systemic risk by empowering such market participants to better protect themselves against risk. Enhancing protection in this manner could in-turn weed out systemically harmful funds from the marketplace, without imposing the severe capital constraints that would be mandated under FSOC’s model.
PubDate: Tue, 04 Apr 2017 12:35:57 PDT
- Failing Cities and the Red Queen Phenomenon
Authors: Samir D. Parikh et al.
Abstract: Cities and counties are failing. Unfunded liabilities for retirees’ healthcare benefits aggregate to more than $1 trillion. Pension systems are underfunded by as much as $4.4 trillion. Many local government capital structures ensure rising costs and declining revenues, the precursors to service-delivery insolvency. These governments are experiencing the Red Queen phenomenon. They have tried a dizzying number of remedies, but their dire situation persists unchanged. State legislatures have failed to respond. More specifically, many states have refused to implement meaningful debt restructuring mechanisms for local governments. They argue that giving cities and counties the power to potentially impair bond obligations will lead to a doomsday scenario: credit markets will respond by dramatically raising interest rates on new municipal and state bond issuances. This argument—which we term the “paralysis justification”—has been employed widely to support state inaction. The paralysis justification, however, is anecdotal and untested. This Article attempts to fill a significant gap in the literature by reporting the results of an unprecedented empirical study. Our study aggregated data for every fixed-rate general obligation, municipal bond issued in the United States from January 1, 2004 to December 31, 2014. It included over eight hundred thousand issuances in total. By employing multivariate regression analysis, we conclude that the paralysis justification is a false narrative. Municipalities located in states that offer meaningful debt restructuring options enjoy the lowest borrowing costs, all other things equal. This Article removes one of the largest obstacles to financial relief for many cities and counties. We hope to encourage recalcitrant state legislatures to enact the structural changes their local governments need desperately.
PubDate: Tue, 04 Apr 2017 12:35:54 PDT
- Tomorrow's Inheritance: The Frontiers of Estate Planning Formalism
Authors: David Horton
Abstract: The rules that govern the creation of an estate plan are in flux. Courts once demanded strict adherence to the Wills Act. Yet, this legacy of hyper-vigilance is waning, as the Uniform Probate Code, the Restatement (Third) of Property, and ten states have adopted the harmless error rule. Meanwhile, trusts, which need not comply with the Wills Act, have eclipsed wills as the dominant method of posthumous wealth transmission. This Article explores three budding topics that threaten to further complicate this area. First, there are anecdotal accounts of decedents trying to make electronic wills. In both strict compliance and harmless error jurisdictions, e-wills raise thorny issues about the meaning of “signed” and “writing” in the Wills Act, and when, if ever, courts should be able to overlook violations of the statute. Second, despite the received wisdom that trusts are less formal than wills, a rising number of settlors are failing to observe the arcane principles that govern the transfer of property into a trust. Third, most state legislatures have adopted or are currently considering statutes that give fiduciaries access to the contents of a decedent’s email, text messaging, and social media accounts. But the precise steps necessary to convey these cutting-edge forms of property after death is unclear. This Article tries to help courts and policymakers regulate these matters by offering a fresh perspective on the purpose of mechanical, bright-line principles in the realm of estate planning. As conventionally framed, this debate revolves around what the Article calls the “intent paradigm”: the idea that execution doctrines should be gauged primarily by whether they facilitate or frustrate the wishes of individual decedents. Conversely, this Article explores a different virtue of formalism: its ability to prevent decedents from imposing spillover costs. This Article demonstrates how some unyielding principles limit the burden on courts, survivors, trustees, the trustee’s creditors, purchasers of trust property, and other third parties. It then explains how recognizing this anti-externality function can pay dividends in wills law, trust law, and emerging niches such as the inheritability of digital assets.
PubDate: Tue, 04 Apr 2017 12:35:51 PDT
- Rethinking Prosecutors' Conflicts of Interest
Authors: Bruce A. Green et al.
Abstract: Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse. Prosecutors’ decisions are riddled with complex motivations, beliefs, and interests that potentially divert them from their duty to do justice. Understood as any personal belief or interest that could interfere with the prosecutors’ ability to serve the public interest, conflicts of interest threaten to undermine the efficacy and legitimacy of the criminal justice system. The traditional regulatory system barely addresses the problem and could never effectively do so. Drawing on experimentalism, which mandates that local actors design and test solutions to large social problems, this Article proposes changes within prosecutors’ offices to help align prosecutors’ decisions with the public interest. Given how pervasive conflicts of interest are, our solution is, in essence, a proposal for a new way to regulate prosecutorial decision-making in general.
PubDate: Tue, 04 Apr 2017 12:35:47 PDT
- The Racialization of Juvenile Justice and the Role of the Defense Attorney
Authors: Tamar R. Birckhead
Abstract: The existence of structural racism is not new. In fact, as the second decade of the twenty-first century comes to a close, there is evidence of a national political openness to acknowledging the phenomenon. This Article seizes upon this openness as it seeks to provide a fuller understanding of how structural racism operates within a branch of the criminal justice system that is often overlooked—the juvenile justice system. The Article offers a definition of racialization that acknowledges its multi-dimensional and fluid nature and the ways it is perpetuated via juvenile court rhetoric, processing, and procedure. It demonstrates how the racial bias that animates today’s juvenile justice system has deep echoes in its early history. The Article examines the harms of racialization and the impact of those harms on children charged with crimes, providing insight into how the construction of race operates within the system as well as how the system itself contributes to the construction of race. In turn, the Article shines a light on how young offenders, who are disproportionately children of color living in poverty, are perceived and understood within American society. The Article also explores the roles of the various actors within the system, focusing upon the juvenile defense attorney and the question of whether it is ethical to utilize racialized narratives during litigation, a discussion that illustrates the tension between two very different models of criminal defense. It analyzes the rules of professional ethics that address the potential conflict between a lawyer’s duty to her client and adherence to her own moral code, and it explores a middle ground that takes into account the unique challenges of defending adolescents charged with crimes. The Article argues that the harms of racialization should be confronted in the context of broader strategies for reform of the juvenile justice system. It considers the efficacy of implicit bias training for police officers and other court actors and proposes implementing practical safeguards that enable defense attorneys to inoculate against bias, rather than focus on the nearly impossible task of eradicating it. The Article concludes with a call to diversify the overwhelmingly white bench and bar in order to create a racially, and ethnically, heterogeneous court culture that emphasizes fair and impartial lawyering, no matter one’s role.
PubDate: Tue, 04 Apr 2017 12:35:43 PDT
- The Constitutionality of the Immigration and Nationality Act Called into
Question Again: The Ninth Circuit Correctly Holds "Obstruction of Justice"
Raises Grave Constitutional Concerns in Valenzuela Gallardo v. Lynch
Authors: Taylor Gibson
Abstract: On March 31, 2016, in Valenzuela Gallardo v. Lynch, the U.S. Court of Appeals for the Ninth Circuit found that the phrase “an offense relating to obstruction of justice,” used as one definition of an aggravated felony within the Immigration and Nationality Act, raised grave unconstitutional vagueness concerns because there are no limits to where the process of justice begins and ends. This issue, identified by the Ninth Circuit, was not addressed by the Second or Eighth Circuits despite these courts interpreting the same statutory provision in separate cases. This Comment argues that the Ninth Circuit was correct on two accounts. First, the phrase, obstruction of justice, does raise unconstitutional vagueness concerns. Under the Board of Immigration Appeal’s new interpretation of the phrase, nearly every specific intent crime could be considered obstruction of justice. Second, the Second and Eighth Circuits overlooking this concern does not create a circuit split. Neither court held that the phrase was without unconstitutional vagueness concerns, but rather had no reason to discuss unconstitutional vagueness in their analysis.
PubDate: Wed, 01 Mar 2017 11:16:53 PST
- But See Kohlheim: The Third Circuit Muddies the Water on the
Compensability of Employee Meal Periods under the Fair Labor Standards Act
in Babcock v. Butler County
Authors: John A. LeBlanc
Abstract: On November 24, 2015, the U.S. Court of Appeals for the Third Circuit, in Babcock v. Butler County, formally adopted the application of the predominant benefit test when determining if the Fair Labor Standards Act requires an hourly employee’s meal period to be compensated. In so doing, the court implicitly concluded that each circuit that previously addressed the issue adopted the predominant benefit test. This Comment argues that the Third Circuit mischaracterized the status of the law on which test the circuit courts apply by overlooking the Eleventh Circuit’s application of the relieved from all duties test.
PubDate: Wed, 01 Mar 2017 11:16:50 PST
- Too Little Space: Does a Zoning Regulation Violate the Second
Authors: Jordan Lamson
Abstract: On May 16, 2016, in Teixeira v. County of Alameda, the U.S. Court of Appeals for the Ninth Circuit held that a zoning ordinance was not presumptively lawful under the Second Amendment. The court utilized the two-step analysis derived from the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller to examine the constitutionality of the ordinance. The court remanded the case and recommended that the district court apply a heighted level of scrutiny—potentially even strict scrutiny. On December 27, 2016, the Ninth Circuit ordered an en banc rehearing. This Comment argues that on rehearing, the Ninth Circuit should analyze, or recommend that the district court analyze, the zoning ordinance at an intermediate scrutiny level. Intermediate scrutiny has been utilized by a majority of courts in Second Amendment challenges, and should be used on rehearing because the ordinance does not present a substantial burden to the core of the Second Amendment right.
PubDate: Thu, 23 Feb 2017 15:03:27 PST
- Enjoying Your "Free" App? The First Circuit's Approach to an Outdated
Law in Yershov v. Gannett Satellite Information Network, Inc.
Authors: Wendy Beylik
Abstract: On April 29, 2016, in Yershov v. Gannett Satellite Information Network, Inc. (“Yershov II”), the U.S. Court of Appeals for the First Circuit held that the Video Privacy Protection Act (“VPPA”) of 1988 extended to a free application provider who disclosed its users’ GPS coordinates, phone identification numbers, and video histories to a data analytics company. In a similar case, the U.S. Court of Appeals for the Eleventh Circuit held that the VPPA did not apply because the relationship was too weak to render the user a “subscriber” under the Act. The U.S. Court of Appeals for the Third Circuit––in an opinion immediately following Yershov II––also adopted a tentative approach when limiting the VPPA’s application to technological innovations. This Comment argues that the First Circuit’s application of the VPPA to new technology properly analogized the Act in line with its text and legislative intent. Because analogies carry some uncertainty and until an agency regulates the area, courts should err on the side of upholding consumer privacy rights and focus on transparency. This approach, showcased by the First Circuit in Yershov II and hesitated on by the Eleventh and Third Circuits, allows for greater predictability in a developing area of the law and re-establishes consumer control for online personal information.
PubDate: Thu, 23 Feb 2017 15:03:22 PST
- The Cure Is Worse: First Circuit Circumvents False Claims Act's
First-to-File Rule in United States ex rel. Gadbois v. PharMerica Corp.
Authors: Daniel Sorger
Abstract: In 2015, in United States ex rel. Gadbois v. PharMerica Corp., the U.S. Court of Appeals for the First Circuit held that a qui tam relator could use supplementation to cure a jurisdictional first-to-file defect in a False Claims Act (“FCA”) action. In contrast, in 2010, the U.S. Court of Appeals for the Seventh Circuit in United States ex rel. Chovanec v. Apria Healthcare Group, Inc. held that relators barred by first-to-file must face dismissal without prejudice and then refile if they are to proceed. Separately, in 2015, the U.S. Court of Appeals for the D.C. Circuit in United States ex rel. Heath v. AT & T, Inc. held the first-to-file rule nonjurisdictional. This Comment argues that the Seventh and D.C. Circuits were correct. An approach that is inconsistent with either holding would contravene the plain language of the first-to-file rule and the FCA’s structure. A refiling requirement also effectuates the FCA’s purpose because it promotes the prompt resolution of cases that are most likely to yield government recoveries. Adopting this requirement is critical to reining in an expansive qui tam regime.
PubDate: Thu, 23 Feb 2017 15:03:19 PST