Boston College Journal of Law & Social Justice
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Open Access journal
ISSN (Print) 2165-5235 - ISSN (Online) 2167-9088
Published by Boston College [8 journals]
- A Motion to Compel Changes to Federal Arbitration Law: How to Remedy the
Abuses Consumers Face When Arbitrating Disputes
Authors: Jeremy McManus
Abstract: Arbitration, as a form of alternative dispute resolution, is a favored method of settling legal disputes because it resolves disputes faster and more cost effectively than in-court litigation. Corporations often exploit the private nature of arbitration by including complex provisions in consumer contracts that require certain disputes to be resolved through arbitration. Consumers subject to these arbitration provisions often do not realize the existence of the provisions, and do not understand that because of undue corporate influence over arbitrators, arbitration tends to favor the corporations against which they arbitrate. Unfortunately, because the U.S. Supreme Court has declared that the Federal Arbitration Act (the “FAA”) preempts states’ ability to declare forced arbitration agreements unconscionable, consumers struggle to challenge unfavorable arbitration awards. To remedy the abuses consumers face in the arbitration arena, this Note argues that Congress should amend the FAA to allow states to declare forced arbitration agreements unconscionable.
PubDate: Thu, 20 Apr 2017 09:24:08 PDT
- The Sermon on the Mountain of Cash: How to Curtail the Prosperity Scheme
and Prevent Opportunists from “Preying” on Vulnerable Parishioners
Authors: Jacob M. Bass
Abstract: Many televangelists in the United States preach the “prosperity gospel,” a doctrine which teaches that a religiously faithful person who continually donates money to church ministries can expect God to grant material improvements to their finances, health, and relationships. Americans who participate in prosperity gospel churches often donate thousands of dollars to these churches, despite their difficulty financing such large donations and the lack of the promised material improvement to their lives. Televangelists who preach the prosperity gospel secretly use these donations to finance their extravagant lifestyles, instead of using the funds to support the faithful masses who continue to donate. The U.S. Constitution’s Free Exercise Clause makes it difficult to regulate this religiously-based scheme. This Note argues that to rectify the abuses of prosperity preachers, prosecutors and private individuals should work within the framework of existing criminal and tax law to seek convictions for fraud and tax evasion.
PubDate: Thu, 20 Apr 2017 09:24:03 PDT
- “Hurdling” Gender Identity Discrimination: The Implications of State
Authors: Kayla L. Acklin
Abstract: The number of students, in grades kindergarten through high school, who identify as transgender has steadily increased during the last decade. These students seek the same opportunities as their cisgender peers, but are often denied participation in athletic activities because of their non-conforming gender-behavior. Currently, there is no federal law governing transgender participation in sports, which has resulted in an inconsistency among state athletic associations’ participation policies; the vast majority of states restricts participation. These states are limiting transgender students’ ability to receive the benefits that sports provide. To solve this inconsistency and provide equal opportunity for transgender students, this Note argues that the Civil Rights Act of 1964 be amended to prohibit gender-based discrimination. As a supplementary solution, the U.S. Department of Education should recommend Congress pass a bill conditioning federal funding of state after-school sports programs on the inclusion of all students, including transgender students.
PubDate: Thu, 20 Apr 2017 09:23:59 PDT
- The Crisis Inside Crisis Pregnancy Centers: How to Stop These Facilities
from Depriving Women of Their Reproductive Freedom
Authors: Brittany A. Campbell
Abstract: Since the late 1960s, pro-life activists have been flooding the United States with crisis pregnancy centers (CPCs), facilities disguised as legitimate reproductive health clinics but, in reality, are mostly unlicensed centers that do not provide contraception or abortion services. These facilities deprive women of their reproductive freedom when they engage in deceptive practices to coerce women out of terminating their pregnancies. This Note examines recent unsuccessful attempts to curb CPC practices and highlights the destructive impacts of CPCs, particularly on young, low-income, and minority women. Misleading CPC tactics bar women from exercising their constitutional right to command their reproductive decisions, including if and when to have an abortion. To better protect a woman’s reproductive liberty, this Note demands the discontinuation of government funding to CPCs, and advocates for contemporary strategies to challenge and regulate CPCs through the use of consumer protection laws and medical conduct claims.
PubDate: Thu, 20 Apr 2017 09:23:56 PDT
- A Call for Change: The Detrimental Impacts of Crawford v. Washington on
Domestic Violence and Rape Prosecutions
Authors: Anoosha Rouhanian
Abstract: In 2004, the U.S. Supreme Court held in Crawford v. Washington that testimonial hearsay is inadmissible at trial unless the declarant is available for cross-examination. Courts have subsequently struggled to define “testimonial hearsay,” but have often vaguely defined it as an out-of-court statement made for the primary purpose of establishing past events for use in future prosecution. Although Crawford intended to protect a defendant’s Sixth Amendment right to confrontation, in doing so, it overlooked the holding’s detrimental effects on two particular types of victims: domestic violence and rape victims. Under Crawford, domestic violence and rape victims’ out-of-court statements are likely to be considered testimonial because the sensitive and personal nature of these incidents often results in substantial deliberation prior to any declaration, as opposed to the impromptu declarations made during so-called ongoing emergencies. In turn, these statements are likely viewed as made for future prosecution. Moreover, domestic violence and rape victims have especially compelling and uniquely fragile psychological reasons to be unavailable for cross-examination, including being at risk at for re-traumatization. Yet, despite these reasons, Crawford still places pressure on these victims to be cross-examined in front of their perpetrators because testimonial hearsay evidence is often determinative in these types of trials, and thus an unavailable victim would lead to an increased likelihood of the perpetrator escaping conviction. This sensitivity and consequential unreliability surrounding the admissibility of testimonial hearsay upon which domestic violence and rape cases rely also disincentives prosecutors from pursuing these cases, further exacerbating the unlikelihood of conviction. To alleviate the detrimental impacts that Crawford has on both victims and trials, this Article suggests that Crawford’s essential terminology must be narrowly defined, exceptions to the ruling must be expanded upon, and victims must be adequately safeguarded.
PubDate: Thu, 20 Apr 2017 09:23:53 PDT
- Post-Conviction Access to DNA Testing: Why Massachusetts’s 278A Statute
Should Be the Model for the Future
Authors: Theodore Tibbits
Abstract: With the recent rise of the Innocence Movement, many traditional police tools for evaluating forensic evidence have been called into question. Increasingly, science has proven that certain outdated forensic analyses are unreliable or invalid, shedding light on how these faulty analyses have contributed to numerous unjust convictions of innocent people. Deoxyribonucleic acid (DNA) technology, a subset of forensic analysis, has performed the counterpoint to this trend by exonerating many wrongfully convicted individuals. Access to DNA testing, however, is inconsistent from state to state. Massachusetts’s new 278A motion is a strong model for the correct implementation of a statute providing post-conviction access to DNA testing. States such as Pennsylvania, which has a plethora of barriers to post-conviction relief through DNA testing, should look to Massachusetts’s 278A statute as an example on which to base updated post-conviction statutes in order to provide the necessary justice to those who have been wrongfully convicted.
PubDate: Fri, 24 Jun 2016 11:52:13 PDT
- No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders
Authors: Gina Puls
Abstract: Modern day sex offender legislation was first implemented in the early 1990s in response to a number of headline-grabbing incidents. Seeking to protect families and children, federal and state legislators passed regulations aimed at tracking, monitoring, and controlling released sex offenders. A key portion of these legislative developments include state and local level residency restrictions, which prevent sex offenders from living within an established distance—usually 1000 to 2500 feet—of various places where children gather, such as schools and daycare facilities. These laws have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected. This Note argues for the implementation of more sensible sex offender legislation, including prioritizing individualized assessments over blanket restrictions, making an exception to allow offenders to live with family, and providing resources to help offenders comply with restrictions. Sex offender legislation based upon false assumptions should no longer be the norm, and these reforms will help balance the goals of sex offender management with the empirical data about offender reintegration.
PubDate: Fri, 24 Jun 2016 11:52:10 PDT
- Probable Cause to Protect Children: The Connection Between Child
Molestation and Child Pornography
Authors: Nicholas Pisegna
Abstract: The federal Circuit Courts of Appeal are divided regarding whether probable cause to search for evidence of child molestation provides probable cause to search for child pornography. This Note examines the relationship among the decisions of the Circuit Courts of Appeal, delves into the empirical evidence regarding the relationship between child pornography and child molestation, and analyzes how the “flexible, non-technical” probable cause standard properly interacts with this relationship. In United States v. Colbert, the U.S. Court of Appeals for the Eighth Circuit concluded that, because of the “intuitive relationship” between child molestation and child pornography, a warrant to search for evidence of child pornography based solely on evidence of child molestation is supported by probable cause. This Note argues that the Eighth Circuit appropriately balances the elastic probable cause standard, the policy concerns related to crimes against children, and the nexus between child molestation and child pornography in concluding that probable cause to search for evidence of child molestation provides probable cause to search for child pornography.
PubDate: Fri, 24 Jun 2016 11:52:07 PDT
- An Opening for Civil Rights in Health Insurance After the Affordable Care
Authors: Valarie K. Blake
Abstract: Section 1557, the civil rights provision of the Affordable Care Act (“ACA”), is unmatched in its reach, widely applying race, gender, disability, and age discrimination protections across all areas of healthcare. This Article will explore the value added of a civil rights approach to combating health insurance discrimination when combined with other ACA anti-discrimination efforts that were designed to regulate the health insurance market. It will emphasize the role that section 1557 can play in combatting healthcare disparities and will explore the utility of disparate impact and disparate treatment claims to those cases. Lastly, the Article will posit that two doctrinal limits weaken a civil rights approach to health insurance equity. First, it is unclear to what extent economic rationality is a permissible defense to insurance discrimination. Second, civil rights doctrine focuses on formal equality, which is of limited use in health insurance, where healthcare distribution must necessarily be unequal. Despite these limitations, section 1557 and civil rights in general will play a critical role in health equity in post-reform healthcare.
PubDate: Fri, 24 Jun 2016 11:52:03 PDT
- A New Constitutive Commitment to Water
Authors: Sharmila L. Murthy
Abstract: Cass Sunstein coined the term “constitutive commitment” to refer to an idea that falls short of a constitutional right but that has attained near-constitutional significance. This Article argues that access to safe and affordable water for drinking, hygiene, and sanitation has attained this status and that national legislation is needed to realize this new constitutive commitment. Following the termination of water to thousands of households in Detroit, residents and community organizations filed an adversary complaint in Detroit’s bankruptcy proceedings seeking a six-month moratorium on the disconnections. The bankruptcy court dismissed the case, accurately finding that “there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages.” The widespread protests and outrage at the Detroit water shutoffs suggest, however, that people perceive access to water as a right. Although affordable access to water for essential needs falls short of a constitutional right, it could implicate substantive due process, which reflects its near constitutional status. An analysis of American history, culture, and law demonstrates how access to water for drinking, hygiene, and sanitation could be protected under the right to life. This Article argues that legislation is needed to implement a new constitutive commitment to water and proposes numerous policy options that would not only make moral and economic sense, but also would ensure that all Americans have affordable access to safe water for drinking, hygiene, and sanitation.
PubDate: Fri, 24 Jun 2016 11:52:00 PDT
- From Homicidal Youths to Reformed Adults: Parole Hearing Procedures for
Juvenile Homicide Offenders in Diatchenko v. District Attorney for the
Authors: Paula Trahos
Abstract: In 2013, the Supreme Judicial Court of Massachusetts, following a United States Supreme Court case, Miller v. Alabama, held that all juvenile homicide offenders would have an opportunity for parole after serving fifteen years in prison. Subsequently, the Supreme Judicial Court of Massachusetts, in Diatchenko v. District Attorney for the Suffolk District, held that juvenile homicide offenders are entitled to representation by counsel at parole hearings, funds for expert witnesses, and can be granted judicial review of parole board decisions. The majority afforded these additional procedures with the intention of providing juvenile homicide offenders with a meaningful opportunity for release. The dissent argued that the majority overstepped their judicial boundaries and entered the executive realm by combining criminal sentencing with parole hearing procedures. This Comment argues that the majority appropriately granted juvenile homicide offenders parole hearing procedural protections.
PubDate: Wed, 06 Apr 2016 06:57:52 PDT
- No Fracknation Without Representation: Stripping Away a City’s Right to
Regulate the Stripping Away of Its Natural Resources in State Ex Rel.
Morrison v. Beck Energy Corp.
Authors: Derek Rocha
Abstract: In 2011, the city of Munroe Falls, Ohio sought to prevent Beck Energy Corporation from drilling for gas or oil within its city limits until the company complied with the city’s relevant municipal ordinances. Pursuant cases sought to resolve whether Munroe Falls’ municipal ordinances were a valid exercise of the city’s home-rule power. The Ohio Supreme Court determined that the local ordinances conflicted with state law, which regulated oil and gas production within Ohio. The court held that the state law preempted the local ordinances as they sought to regulate oil and gas production in a similar manner. In response, the concurring and dissenting opinions expressed concern that the plurality opinion demonstrated a rigid deference towards preemption at the expense of traditionally recognized areas of municipal authority. This Comment argues in favor of the concurring and dissenting opinions, which rightly cautioned against the preemption of all local regulations by state law when dealing with ultrahazardous and locally impactful activity.
PubDate: Wed, 06 Apr 2016 06:57:46 PDT
- A Tort Report: Christ v. Exxon Mobil and the Extension of the Discovery
Rule to Third-Party Representatives of Decedents in Wrongful Death and
Authors: Jeremy McManus
Abstract: On June 23, 2015, the Wisconsin Supreme Court allowed representatives of deceased employees of a tire manufacturing facility to use the “discovery rule” to extend the statute of limitations for their wrongful death and survival suits associated with the decedents’ forced benzene exposure at the facility, provided they could show the information necessary for making their claims had not been available upon diligent effort within the statute’s timeframe. The majority reasoned that public policy is in favor of allowing meritorious claims to be heard, there is no significant difference between direct victims and representatives to render an extension untenable, and the preservation of existing barriers to stale claims being heard will allow for the smooth extension of the discovery rule. This Comment argues in favor of the majority’s approach, as it best protects the ability of all tort victims to recover damages they are owed.
PubDate: Wed, 06 Apr 2016 06:57:32 PDT
- The Big Stink About Garbage: State v. McMurray and a Reasonable
Expectation of Privacy
Authors: Brittany Campbell
Abstract: On March 11, 2015, the Supreme Court of Minnesota affirmed a lower court decision against David Ford McMurray, who was found guilty of third-degree possession of a controlled substance and sentenced to twenty-four months. McMurray was charged after Hutchinson, Minnesota police searched through his garbage and found evidence of methamphetamine. The majority held that a warrantless search of the defendant’s garbage was reasonable under the federal and state constitutions because a person has no reasonable expectation of privacy in garbage set out for collection on the side of a public street because garbage is readily accessible to other members of the public. The dissenting judge persuasively opined that there is, in fact, a reasonable expectation of privacy when an individual places his or her garbage at the curb for collection because household waste contains personal information that most individuals expect will remain private. This Comment argues that the dissent’s approach better understands the private nature of waste, the opinion’s troubling repercussions for disadvantaged communities, and the potential for broader government intrusion.
PubDate: Wed, 06 Apr 2016 06:57:25 PDT
- “Slurring” the Lines Between Insensitivity and Hostility:
Boyer-Liberto v. Fontainebleau Corp. and the Evaluation of Title VII
Racial Harassment Claims
Authors: Kayla Acklin
Abstract: On May 7, 2015, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held in favor of Reya C. Boyer-Liberto, an African American cocktail waitress employed by defendant Fontainebleau Corporation, who claimed racial harassment in violation of Title VII by fellow employee, Trudi Clubb. In Boyer-Liberto v. Fontainebleau Corp., the majority based its analysis on Clubb’s use of a racial epithet, twice in a twenty-four hour period, which they determined was severe or pervasive enough to create a racially hostile work environment, even in isolation. The separate concurring and dissenting opinions emphasized the majority’s departure from precedent established in Harris v. Forklift Systems, Inc. and Faragher v. City of Boca Raton. Both the concurrence and dissent were concerned that the majority’s decision would increase segregation in the workplace, which would be counterproductive to Title VII’s purpose, and would lead to an increase in frivolous employment litigation.
PubDate: Wed, 06 Apr 2016 06:57:18 PDT
- More Carrot, Less Stick: Workplace Wellness Programs & The Discriminatory
Impact of Financial and Health-Based Incentives
Authors: Emily Koruda
Abstract: In recent years, more and more employers are turning to workplace wellness programs to combat rising health care costs by rewarding employees for improving their health-related behaviors and penalizing those who do not attain measureable health outcomes. Yet these wellness programs run counter to the goals of improving the overall health and livelihood of employees when they shift health care costs onto the employees who need lower premiums the most. There is little evidence that these programs can avoid being discriminatory. This Note analyzes the disparate impact of workplace wellness programs on low-income individuals, individuals with disabilities, and certain racial minorities. It explains how employers utilize wellness programs as a subterfuge for discriminatory cost-shifting—in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964—that decreases access to, and affordability of, quality health care services. This Note argues that, in order to rectify the discriminatory effects of these programs, the Equal Employment Opportunity Commission must issue explicit guidance and exercise its power effectively as an enforcer of anti-discrimination law. Additionally, the Health Insurance Portability and Accountability Act must be modified to better define “voluntariness” within the realm of incentives and penalties.
PubDate: Tue, 01 Mar 2016 14:05:26 PST
- Make Him an Offer He Can’t Refuse: The Concerning Practice That
Effectively Ends Collective Litigation and How to Fix It (Without the
Authors: Daniel Fishman
Abstract: In certain American jurisdictions, collective action lawsuits are severely limited through rules that enable a defendant to make a settlement offer worth the entirety of the plaintiff’s damages and thus moot his or her claim, regardless of whether the offer is accepted. In collective litigation, if the settlement offer is made prior to a motion for class certification, the defendant may end the litigation with minimal costs for the defendant, but with minimal justice for the represented class. This practice of mooting collective actions prior to a motion for class certification leaves the class without a representative, case, or settlement money, effectively ending collective litigation as an avenue of justice. Eliminating collective litigation takes an essential tool out of the hands of individuals seeking to enforce their rights against powerful and unified defendants in areas such as civil rights, environmental justice, and employment law. This Note advocates for either the U.S. Supreme Court to remedy this issue through its jurisprudence or for an amendment to the Federal Rules of Civil Procedure to prevent courts from mooting collective cases with unaccepted settlement offers prior to class certification, either through the traditional rulemaking process or through legislative action.
PubDate: Tue, 01 Mar 2016 14:05:22 PST