Boston College Law Review
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Open Access journal
ISSN (Print) 0161-6587
Published by Boston College [8 journals]
- 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
- Constitutional Law and the Role of Scientific Evidence: The Transformative
Potential of Doe v. Snyder
Authors: Melissa Hamilton
Abstract: In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.
PubDate: Wed, 22 Feb 2017 08:18:10 PST
- Dispelling the Myth that Law Students Can Close the Justice Gap
Authors: John P. Gross
Abstract: Recently, the idea that law students can bridge the “justice gap,” understood here as both the inability of low-income Americans to obtain civil legal services and the inadequacy of representation by overworked public defenders in criminal cases, has been gaining in popularity. This growing trend is embodied in the pro bono requirements imposed on bar applicants in a growing number of states. This Essay argues that the idea that law students can make a “significant” contribution to closing the existing justice gap overestimates the number of law students currently enrolled in our nation’s law schools and underestimates the volume of low-income Americans in need of legal services.
PubDate: Wed, 08 Feb 2017 08:54:14 PST
- Beyond Rehabilitation: Constitutional Violations Associated with the
Isolation and Discrimination of Transgender Youth in the Juvenile Justice
Authors: Sonja Marrett
Abstract: The juvenile justice system is predicated on a theory of rehabilitation with concern for protecting juveniles and society. For lesbian, gay, bisexual, and transgender (“LGBT”) youth, however, the system has developed into a punitive arrangement. LGBT youth face higher rates of criminalization and incarceration for non-violent crimes than any other group of youth. They also face unique threats, including sexual, physical, and emotional harassment; isolation; and a lack of medical care. Transgender youth are especially impacted. In response, victims have increasingly brought constitutional claims against federal prison officials for unconstitutional conditions of confinement. The courts are inconsistent on whether the judiciary should utilize the protections of the Fourteenth Amendment’s due process clause or the Eighth Amendment’s proscription against cruel and unusual punishment to evaluate juvenile conditions of confinement cases. This Note weighs the two approaches to determine that the due process clause is more protective of transgender and LGBT juveniles more broadly.
PubDate: Tue, 31 Jan 2017 15:25:49 PST
- Footing the Bill for Natural Gas Leaks: Why States Should Limit Cost
Recovery of Lost and Unaccounted for Gas
Authors: Liam Holland
Abstract: State statutes prohibit unjust or unreasonable natural gas utility rates. Public Utility Commissions (“PUCs”) administer these state laws and permit gas distribution companies to recover natural gas commodity costs related to lost and unaccounted for gas from customers through “purchased gas adjustment clauses.” In most of those states, PUCs permit "total recovery" of all lost and unaccounted for gas costs via these clauses using periodic rate adjustments. A small number of PUCs have reformed purchase gas adjustment clauses in order to incentivize gas distribution companies to reduce lost and unaccounted for gas. This Note advocates for all state public utility commissions regulating natural gas distribution companies to reform purchased gas adjustment clause design in order to incentivize local gas distribution companies to reduce lost and unaccounted for gas. This Note also argues that the method used by the New York State Public Service Commission, limiting gas cost recovery to the historical average of actual lost gas, most closely aligns with the statutory purposes underlying laws that prohibit unjust and unreasonable rates, while avoiding Constitutional takings concerns.
PubDate: Tue, 31 Jan 2017 15:25:45 PST
- Standing in the Future: The Case for a Substantial Risk Theory of
"Injury-in-Fact" in Consumer Data Breach Class Actions
Authors: Nicholas Green
Abstract: The increasing digitalization of our personal and professional lives has generated corresponding growth in the amount of electronically stored private information in the hands of third parties. That private information is at risk of theft, loss, or manipulation. Employers that hold employee tax information and merchants that hold significant troves of consumer credit card data are particularly attractive targets. When hackers strike, victims often band together in federal class actions, naming the custodians of their private data as defendants. More and more, however, district courts are dismissing these class action claims at the doorstep for lack of Article III standing. The corporate defendants argue, and many courts agree, that a plaintiff’s alleged increased risk of future data misappropriation is insufficient to satisfy the U.S. Supreme Court’s test for an “injury in fact,” a critical component of the traditional standing analysis. This Note argues that many consumer data breach class actions do in fact satisfy the Supreme Court’s standing requirements, as outlined in the Court’s 2013 decision in Clapper v. Amnesty International USA and its 2016 decision in Spokeo, Inc. v. Robins.
PubDate: Tue, 31 Jan 2017 15:25:42 PST
- Get Your Own Street Cred: An Argument for Trademark Protection for Street
Authors: Danielle Crinnion
Abstract: Street art is visual art created in public spaces, many times at the behest of the communities in which the work is created. It is a derivative of graffiti, which is the illicit marking of public locations, usually on buildings or train cars. Retailers’ appropriation of street art and graffiti is becoming commonplace, causing confusion in the market. As a result, street artists have filed an increasing number of copyright and trademark infringement lawsuits to protect their intellectual property rights. There is a debate regarding whether these artists are entitled to trademark protection given the expressive nature of their marks. Courts are reluctant to grant trademark protection since expressive works are traditionally protected under copyright law. Most street artists, as opposed to creators of “fine art,” however, use marks in a trademark manner to build reputations and identify the source of their works. This Note argues that courts should broadly interpret the Lanham Act’s “use in commerce” requirement to validate marks used by street artists. Street art substantially affects commerce and therefore should be covered by the Commerce Clause. Abroad interpretation furthers Congress’s intent under trademark law to prevent consumer confusion. In the alternative, this Note contemplates treatment of street artists under the eleemosynary standard reiterated by the Eleventh Circuit Court of Appeals in 2001 in Planetary Motion Inc. v. Techsplosion, Inc., and considers the possibility of adding a famous mark exception to the use in commerce requirement.
PubDate: Tue, 31 Jan 2017 15:25:39 PST
- Rape Law Gatekeeping
Authors: Corey Rayburn Yung
Abstract: Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the widespread conventional wisdom among academics and activists that reforming evidentiary rules and consent standards would trickle down to police decisions has proven unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to policing failures, tinkering with rules and statutes is likely to yield little progress. Consequently, reform efforts must prioritize fixing the most significant bottleneck in rape cases: police. Several such legal and policy changes are incorporated into a model statute designed to ameliorate the widespread, ongoing problems associated with police gatekeeping.
PubDate: Tue, 31 Jan 2017 15:25:35 PST
- Regulating Tax Return Preparation
Authors: Jay A. Soled et al.
Abstract: Annually, the U.S. government collects nearly $3 trillion of income and employment taxes. With respect to these collections, Form 1040 (U.S. Individual Income Tax Return) seeks to ensure taxpayer accuracy. Currently, two sets of players dominate the Form 1040 preparation and submission process: tax return preparers and tax return preparation software companies. The former guides taxpayers through the entire tax return preparation and submission process, and the latter provides taxpayers with the necessary tools to complete and submit tax returns themselves. Tax return preparers and tax software companies thus stand as vital intermediaries between the government and taxpayers. Despite the key role that tax return submission plays in government function, Congress exercises virtually no oversight over the process. Currently, regardless of education, knowledge, or experience, any person can prepare tax returns for compensation; similarly, almost no checks exist to ensure the substantive accuracy of tax returns prepared with tax software. As a result of these shortcomings, taxpayers file millions of flawed tax returns each year. Faulty returns shortchange the government of necessary revenue, deprive some taxpayers of crucial government benefits, and leave others liable for back taxes and penalties. This Article is the first to propose comprehensive tax return preparation process reform. It urges Congress to regulate both tax return preparers and tax preparation software companies. Adoption of one or more of the proposed reforms should lead to more accurate tax returns, protect taxpayers, and ensure a fairer and more efficient tax system.
PubDate: Tue, 31 Jan 2017 15:25:32 PST
- The Cost of High Prices: Embedding an Ethic of Expense into the Standard
Authors: Isaac D. Buck
Abstract: In the midst of rapid and radical change of America’s health care system, the country’s crown jewel public health insurance program, Medicare, faces an intensifying cost crisis due to a past of uncontrolled prices and a future of booming enrollment. A cost challenge garnering particular media attention is pharmaceutical drug pricing for Medicare Part B. Historically, congressional action has hamstrung Medicare’s ability to limit costs, and as a result, the program is increasingly forced to pass on drug costs—through copays and coinsurance—to its elderly beneficiaries. Public outrage has followed recent stories of pharmaceutical companies seeking to increase their prices, and policymakers have called for increased regulation. Nevertheless, there may be better solutions to Medicare’s pharmaceutical drug cost crisis. Recognition of “financial toxicity”—the effect of a pharmaceutical drug’s price on the mortality of the patient undergoing treatment—provides a potential new foothold for health care regulation. Like other side effects, if the price of a pharmaceutical drug negatively impacts rates of survival, then the cost of the drug could be an important component of clinical decision making and, presumably, the standard of care. Linking the cost of a drug to its clinical efficacy could dramatically impact which drugs providers choose, giving Medicare a new tool in its efforts to become a better gatekeeper of the public fisc without relying on bureaucratic hard power or legal enforcement. Using the burgeoning field of new governance, this Article focuses on how law and policy could shift to reflect the new understanding of financial toxicity. Arguing that the phenomenon finally provides a connection between cost and quality, this Article examines the instantiation of cost within the ethic of care. This route may provide an opening for a limitation on the ever-increasing price of pharmaceutical drugs and provide a powerful, yet unarticulated, legal signal that drugs that cost too much negatively impact the quality of care that American patients receive.
PubDate: Tue, 31 Jan 2017 15:25:29 PST
- Reed v. Town of Gilbert: Relax, Everybody
Authors: Enrique Armijo
Abstract: In Reed v. Town of Gilbert, the U.S. Supreme Court held that a law is content-based if it draws distinctions on its face based on the message an affected speaker conveys. Reed rejected previous lower court interpretations of the Court’s content discrimination doctrine, which had consistently held that a content-based law was not subject to strict scrutiny if its reference to content was not based on government disapproval of that content. Reed has set off a firestorm. The justices who concurred in the judgment warned that the case’s rule would cast doubt on a range of government action historically considered to not implicate the First Amendment, from securities regulation to product labeling. Commentators have called Reed everything from a “groundbreaker” to a “redefinition” of content discrimination doctrine that will have “profound consequences.” The message of this Article is that Reed’s critics should, in a word, relax. Close review of those areas in which Reed’s critics claim the case will cause the most harm demonstrates that other parts of First Amendment doctrine, all of which survive Reed, will limit the case’s reach. The case also clarified several murky areas of that doctrine. Additionally, the focus on Reed obscures a far more important issue: the fallacy of continuing to use a categorical approach to First Amendment cases that turns entirely on whether or not a given law refers to content and ignores a law’s actual effect on speech.
PubDate: Tue, 31 Jan 2017 15:25:26 PST
- The Law of Nonmarriage
Authors: Albertina Antognini
Abstract: The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage—especially in the wake of Obergefell v. Hodges—a record number of people are not marrying. Legal scholarship has mostly neglected how the law regulates these nonmarital relationships. This Article begins to fill the gap. It does so by examining how courts distribute property at the end of a relationship that was nonmarital at some point. This inquiry provides a descriptive account to a poorly understood and largely under-theorized area of the law. Analyzing property disputes offers a unique perspective: courts must assess the nature of the relationship and assign a value to the contributions made by each party. Considering various types of nonmarital relationships together—including unmarried couples who were also married at some point—shows that courts draw the line between marriage and nonmarriage inconsistently. Some courts only distribute property at the end of a relationship that looked just like a marriage; other courts require the exact opposite, refusing to distribute property in a relationship that approached, but never became, a marriage. Despite these inconsistencies, one very clear trend emerges: the individual seeking property, who in nearly all cases is a woman, has a difficult time receiving anything outside of marriage. This analysis further reveals how courts actively define marriage in deciding whether and how to distribute property in relationships that are not marital. Given the problematic picture of modern marital and nonmarital relations that materializes, this Article calls for moving beyond the marriage-nonmarriage dyad in allocating property rights between individuals who are not, or have not been, married.
PubDate: Tue, 31 Jan 2017 15:25:24 PST
- The Overlooked Daisy Chain Problem in Salman
Authors: Franklin A. Gevurtiz
Abstract: In Salman v. United States, the Supreme Court granted certiorari to resolve a conflict with United States v. Newman as to when corporate insiders receive sufficient personal benefit from making gifts of inside information to make the tip and consequent trade illegal. This Essay explores an overlooked aspect of these cases, the “daisy chain problem,” which involves how the personal benefit element for illegal tipping applies to the subsequent tips that occur when the recipient of information from the corporate insider, in turn, passes the information on to others. This daisy chain problem could potentially distinguish the facts of Salman and Newman and thus deserves the attention of the Court and commentators.
PubDate: Thu, 01 Dec 2016 09:47:06 PST
- Should YouTube’s Content ID Be Liable for Misrepresentation Under the
Digital Millennium Copyright Act?
Authors: Laura Zapata-Kim
Abstract: YouTube has quickly become the dominant player in the Internet video sharing platform market. To keep its leading position, it created an internal automated system to police potential copyright infringements known as Content ID. Generally, that system functions similarly to third-party computer automated systems that send takedown requests, yet it is exempt from liability for removing lawful videos under a safe harbor provided by the Digital Millennium Copyright Act of 1998 (“DMCA”). Although some industry experts first championed Content ID, many now question whether it unfairly favors copyright holders and YouTube itself at the expense of content creators and the greater Internet community. This Note asserts that a Content ID match is equivalent to a formal takedown notice under the DMCA, and that Content ID should thus have to consider fair use prior to issuing a Content ID match. This Note then argues that the DMCA’s safe harbor provisions should be amended to require websites utilizing internal automated systems to consider fair use.
PubDate: Thu, 01 Dec 2016 09:46:37 PST
- Can I Skype My Doctor? Limited Medicare Coverage Hinders Telemedicine’s
Potential to Improve Health Care Access
Authors: Hana Sahdev
Abstract: Telemedicine services, such as virtual consultations and remote patient monitoring, are revolutionizing health care delivery. The Patient Protection and Affordable Care Act of 2010 (“ACA”) promotes the use of technology in health care reform as a means to increase quality and access while reducing costs. Despite the excitement around telemedicine, the lack of Medicare reimbursement hinders access and innovation. This Note analyzes the utilization of telemedicine to promote health care access for Medicare beneficiaries, and argues that legislative and regulatory changes are needed to reconcile current Medicare policies with the ACA’s encouragement of using telemedicine services. Specifically, this Note recommends that Congress expand telemedicine reimbursement by increasing the number of covered telemedicine services, and by lifting site restrictions and geographical limitations on reimbursement.
PubDate: Thu, 01 Dec 2016 09:46:30 PST