Boston College Law Review

http://lawdigitalcommons.bc.edu/bclr/

List of Papers (Total 2,489)

The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute

On January 3, 2017, in Adhikari v. Kellogg Brown & Root, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Alien Tort Statute (“ATS”) did not provide jurisdiction for claims brought against a U.S. military contractor for torts committed in Iraq. In foreclosing plaintiffs’ claims, the Fifth Circuit held that the presumption against the ATS’s extraterritorial...

Correcting Correctional Suicide: Qualified Immunity and the Hurdles to Comprehensive Inmate Suicide Prevention

Suicide is the leading cause of death in U.S. jails, and the second leading cause of death in U.S. prisons. Suicidal behavior among inmates largely stems from the custodial environment and inmates’ difficulties coping with incarceration. Unfortunately, many correctional facilities lack the comprehensive suicide prevention policies necessary to reduce inmate suicides. Under the...

Crowdfunding Civil Justice

The Article provides a systematic law and economics analysis of civil litigation crowdfunding. It first distinguishes between investment-based and non-investment-based crowdfunding models. Investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of...

Lost Profits in a Multicomponent World

Given our adversarial system, it is not surprising that plaintiffs advance creative damages theories that would help them maximize their recoveries. In patent law, one recurring tactic for patentees is to seek remedies based on the entire infringing product instead of the specific feature covered by the patent. This distinction can significantly inflate remedies because modern...

Aggregation on Defendants

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders...

Lawful Permanent Residency: What the United States Citizenship & Immigration Services Giveth, It Can Also Take Away

Millions of foreigners strive to become Lawful Permanent Residents of the United States, but that status is limited to those immigrants who meet certain requirements and comply with extensive procedures. There is ample U.S. case law interpreting what it means to be “lawfully admitted for permanent residence.” Until the Sixth Circuit’s decision in 2017 in Kamal Turfah v. United...

Muddying the Chevron Waters: The D.C. Circuit Lacks Doctrinal Clarity in Waterkeeper Alliance v. EPA

Chevron deference is one of the most contentious and misunderstood doctrines in administrative law. Justice John Paul Stevens’ opinion in the watershed 1984 case Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. established a two-step framework for courts to use in evaluating agency rule-making authority. That clear two-step process has undergone rewording and...

Public Entities Become a Model Against Age Discrimination: Expanding the Definition of "Employer

In Guido v. Mount Lemmon Fire District, the Ninth Circuit split with four other circuits in its understanding of the definition of employer under the Age Discrimination in Employment Act (“ADEA”). For decades, the other circuits found that the ADEA’s definition of employer excluded both private and public entities that did not meet the statute’s numerosity requirement of twenty...

Legal Limbo: The Fifth Circuit's Decision in Turner v. Driver Fails to Clarify the Contours of the Public's First Amendment Right to Record the Police

On February 16, 2017, the U.S. Court of Appeals for the Fifth Circuit, in Turner v. Driver, held that the public has a First Amendment right to record the police that is subject only to reasonable time, place, and manner restrictions. Although Turner established that the public has a First Amendment right to film the police, the decision skirted the question of whether the...

Privacy, Screened Out: Analyzing the Threat to Individual Privacy Rights and Fifth Amendment Protections in State v. Stahl

Courts across the United States have applied Fifth Amendment protections to passcodes, as long as those passcodes are not a foregone conclusion. In order for a court to determine that a passcode is a forgone conclusion, and thus not testimonial in nature, the prosecution must show that they knew the existence, possession, and authenticity of the evidence that would be discovered...

"Bears Need Room to Roam": The Ninth Circuit's Questionable Interpretation of Critical Habitat Designation

In February 2016, in Alaska Oil & Gas Ass’n v. Jewell, the United States Court of Appeals for the Ninth Circuit upheld a decision by the U.S. Fish and Wildlife Service to designate 187,000 square miles in northern Alaska as critical polar bear habitat. The Ninth Circuit rejected the reasoning of the District Court for the District of Alaska which found that the FWS failed to meet...

Doctrine on the Run: The Deepening Circuit Split Concerning Application of the Fugitive Disentitlement Doctrine to Foreign Nationals

The circuits are currently split on applying the fugitive disentitlement doctrine to a defendant who is a foreign national who resides outside of the United States and is being prosecuted in the United States for conduct that occurred elsewhere. The doctrine provides that a fugitive is prohibited from seeking relief from the justice system whose jurisdiction and authority they...

Writing the Access Code: Enforcing Commercial Web Accessibility Without Regulations Under Title III of the Americans with Disabilities Act

A growing number of private lawsuits allege that businesses are violating Title III of the Americans with Disabilities Act because their websites are inaccessible to disabled individuals. Courts remain divided, however, on the extent to which commercial websites are covered under Title III. Additionally, the Department of Justice has not promulgated commercial web accessibility...

“A Search Is a Search”: Scanning a Credit, Debit, or Gift Card Is a Search Under the Fourth Amendment

On May 18, 2017, the U.S. Court of Appeals for the First Circuit, in United States v. Hillaire, joined the Fifth, Sixth, and Eighth circuits in holding that the government’s act of scanning the magnetic stripes of lawfully seized credit, debit, or gift cards to access the information encoded therein is not a search within the meaning of the Fourth Amendment. In each case, the...

Shucking a Patent: How a Simple Best Available Technology Law Can Break the Shell of Patent Protections

Best available technology laws attempt to force the utilization of the most efficient and environmentally friendly technology that is economically achievable for a regulated actor to implement. Sustainability and numerous environmental benefits come from these laws. Although simple to create, the implementation of a best available technology law is difficult and the sought...

Consumers, Seller-Advisors, and the Psychology of Trust

Every day, consumers ask sellers for advice. Because they do not or cannot know better, consumers rely on that advice in making financial decisions of varying significance. Sellers, motivated by strong and often conflicting self-interests, are well-positioned to lead consumers to make decisions that are profitable for sellers and may be harmful to the consumers themselves. Short...

Technological Opacity & Procedural Injustice

From Google’s auto-correction of spelling errors to Netflix’s movie suggestions, machine-learning systems are a part of our everyday life. Both private and state actors increasingly employ such systems to make decisions that implicate individuals’ substantive rights, such as with credit scoring, government-benefit eligibility decisions, national security screening, and criminal...

Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel

On February 15, 2017, the U.S. Court of Appeals for the Sixth Circuit affirmed that the Sixth Amendment right to counsel does not attach to pre-charge plea negotiations. In so doing, the Sixth Circuit upheld a bright-line rule that the right to counsel does not attach until formal charges have been filed. Two months later, on April 13, 2017, the Sixth Circuit vacated its opinion...

You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project

On June 12, 2017, the United States Court of Appeals for the Ninth Circuit held in SolarCity Corp. v. Salt River Project Agricultural Improvement and Power District that the doctrine of state action immunity confers immunity from liability, and therefore a court ruling granting or denying state action immunity may not be immediately appealed. In concluding this, the Ninth Circuit...

No Public Benefits for Public Benefit: The Eleventh Circuit's Narrow Approach to Copyright Registration

In the 2017 case Fourth Estate Public Benefit Corporation v. Wall-Street.com, the United States Court of Appeals for the Eleventh Circuit held that before a plaintiff can bring a claim for copyright infringement under the 1976 Copyright Act, the United States Copyright Office (“Copyright Office”) must officially review the work submitted for registration, and the Register of...

Praying for Clarity: Lund, Bormuth, and the Split Over Legislator-Led Prayer

On September 6, 2017, the en banc U.S. Court of Appeals for the Sixth Circuit released its opinion in Bormuth v. County of Jackson, finding prayers offered by the Jackson County Board of Commissioners constitutional under the Establishment Clause. That decision involved detailed factual analysis, which varied greatly from the analysis used by the en banc U.S. Court of Appeals for...

Mayhew v. Town of Smyrna: The Sixth Circuit Frustrates Public Employees

On May 11, 2017, the U.S. Court of Appeals for the Sixth Circuit, in Mayhew v. Town of Smyrna, held that the protected status of a public employee’s speech in a First Amendment retaliation claim remains one of law, rather than one of mixed law and fact. In so doing, the Sixth Circuit disallowed jury determinations on the fact-intensive inquiry into the protected status of the...

The Department That Cried Wolf: Tenth Circuit Vacates Preliminary Injunction in Absence of Likely Injury in New Mexico Department of Game & Fish v. United States Department of the Interior

In the 2017 case, New Mexico Department of Game & Fish v. United States Department of the Interior, the United States Court of Appeals for the Tenth Circuit held that the New Mexico Department of Game and Fish (“New Mexico Department”) was not entitled to a preliminary injunction that barred the United States Fish and Wildlife Service from releasing endangered Mexican gray wolves...

Excessive Force, Police Dogs, and the Fourth Amendment in the Ninth Circuit: The Use of Summary Judgement in Lowry v. City of San Diego

On June 6, 2017, in Lowry v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit sitting en banc upheld a district court’s grant of summary judgment, dismissing a claim under 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment to the U.S. Constitution, in the context of “bite and hold” training for police dogs. This Comment argues that...

Pathologizing “Radicalization” and the Erosion of Patient Privacy Rights

Countering Violent Extremism (“CVE”) is a counterterrorism strategy ostensibly aimed at preventing “radicalization” through risk assessment and intervention. CVE involves recruitment of helping professionals, including mental health care providers, to monitor their patients for signs of “vulnerability to radicalization,” make referrals to “de-radicalization” programs, and...