The October 2024 issue of Boston College Law Review is now available. The issue features four articles by outside authors as well as three student notes. Summaries of the seven pieces can be found below. The full texts are also聽.
by Professor Rachel Wechsler
Civil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (IPV). They are more empowering for victims than the criminal legal system because victims themselves, instead of prosecutors, drive the process, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil protection orders and legal services providers who assist victims with navigating the process.聽The data from legal services providers create a picture of court protective order procedures in jurisdictions across the country from before, during, and in the late stages of the COVID-19 pandemic, once public health restrictions were generally lifted.聽Based on the research results, this Article argues for codifying 鈥渁ccessible process pluralism鈥� in state protective order statutes. This statutory framework would give petitioners the opportunity to indicate their hearing participation preference on the petition itself and require judges to follow these choices absent good cause, among other accessibility-focused provisions. By harnessing the innovations and lessons from the pandemic, this proposal promotes survivor empowerment and access to justice for both petitioners and respondents.
by Professor Brian Connolly聽
America faces a staggering housing affordability crisis. The consequences of the crisis include reduced economic productivity, suppressed labor mobility, greater social inequity, and increased homelessness. Several jurisdictions have recently elected to allow middle housing鈥攕mall, multi-family developments鈥攊n areas previously zoned for single-family detached housing. The results of these reforms, however, have been disappointing. This Article examines why they have fallen short and how to do better.聽This Article identifies an analytical disconnect between the deregulatory consensus and actual single-family zoning reforms adopted to date. Interviews of middle housing builders in reform jurisdictions reveal legal and structural barriers that prevent market participants from responding to the housing crisis with scale and urgency. This Article proposes several regulatory alternatives that offer a greater probability of success in achieving the consensus鈥檚 goals: (1) modestly expanding multi-family zones to allow redevelopment and densification of underutilized non-residential properties; (2) providing affordable-housing density bonuses; (3) streamlining land-use procedures and eliminating administrative delay to reduce uncertainty in permitting processes; and (4) reevaluating financing mechanisms for new housing development.聽
by Professor Sharona Hoffman
This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments.聽Employers may be highly motivated to safeguard their workers鈥� health. Without healthy staff members, they cannot keep their doors open, and without visible pandemic protections, they cannot reassure concerned customers that their premises are safe. Their contributions can significantly reduce health disparities by protecting vulnerable individuals who otherwise face health care access barriers and economic challenges that exacerbate their risks.聽This Article posits that in future public health emergencies, the United States will increasingly rely on those with a financial stake in individuals鈥� health. Federal and state government authorities should therefore embrace employers as public health partners. To that end, this Article develops recommendations concerning guidance and funding support that should be available to assist employers in their emergency response efforts.
by Professor Gregory Dickinson
Current consumer-protection debates focus on the powerful new data-analysis techniques that have disrupted the balance of power between companies and their customers. Online tracking enables sellers to amass troves of historical data, apply machine-learning tools to construct detailed customer profiles, and target those customers with tailored offers that best suit their interests. It is often a win-win. But the same tools are also used for ill鈥攖o target vulnerable members of the population with scams specially tailored to prey on their weaknesses. The result has been a dramatic rise in online fraud that disproportionately impacts those least able to bear the loss.聽A superior approach would focus not on the technological tools of deception but on what this Article identifies as the legal patterns of digital deception: those aspects of digital technology that have outflanked the law鈥檚 existing mechanisms for redressing consumer harm. This Article reorients the discussion from the power of new technologies to the shortcomings in existing regulatory structures that have allowed for their abuse. Focus on these patterns of deception will allow regulators to reallocate resources to offset those shortcomings and thereby enhance efforts to combat online fraud without impeding technological innovation.
by Ryan Sanguigni
In 1946, the Federal Tort Claims Act (FTCA) waived what was once absolute: federal sovereign immunity for government-caused torts. Nevertheless, the Supreme Court鈥檚聽Feres聽doctrine declines to extend the FTCA鈥檚 immunity waiver to certain tort claims of military service members. The doctrine precludes petitioners who have suffered an injury incident to their military service from bringing a negligence claim against the government. Its origins are not without controversy and modern courts often have trouble applying it in an equitable manner. In 2021, for example, the U.S. Navy negligently contaminated the drinking water supply of thousands of civilians and service members on the island of Oahu. Although recent case law applying the FTCA to drinking water-related torts indicates a willingness to allow some of these claims to proceed, that willingness has not been extended to service members due to the聽Feresdoctrine. This Note argues that the聽Feres聽doctrine is inequitable because it excludes service members鈥� injuries in an overbroad manner. Further, this Note proposes a modified聽Feres聽test based on the Ninth Circuit鈥檚 interpretation of the doctrine to promote equity and applies it to the Navy鈥檚 actions on Oahu.
聽by Maria Russo
When the Supreme Court overturned聽Roe v. Wade聽in 2022, the loss of reproductive freedom was not the only health care crisis created by the Court. Across the country, people with chronic conditions, including autoimmune disease, were unable to access their prescription medication after abortion bans imposed restrictions on abortion-inducing drugs. Texas鈥檚 state medication abortion law, the Woman鈥檚 Right to Know Act, may prevent those with disabilities from accessing lifesaving medication with abortifacient properties. This unintended consequence puts health care professionals such as doctors and pharmacists at risk of legal liability for simply prescribing the best course of treatment. This Note argues that the Woman鈥檚 Right to Know Act has left health care professionals unable to understand what conduct is prohibited and provides too much discretion to law enforcement, rendering the law unconstitutionally vague. Clarifying the law and prohibiting provider liability is in the best interests of both patients and providers and will allow health care professionals to continue their work to protect patient health.
聽by Emily Saulnier
Institutions of higher education in the United States have enjoyed a broad tax exemption for hundreds of years. In 2017, however, Congress imposed an excise tax on certain colleges鈥� and universities鈥� endowment revenue as part of the Tax Cuts and Jobs Act (Act). The endowment excise tax is not scheduled to sunset in 2025 alongside other provisions of the Act, but members of Congress have begun to revisit the issue of whether and how to tax the nation鈥檚 educational institutions. This Note examines two endowment tax proposals鈥� attempts to exempt religious colleges and universities from heightened endowment excise taxes. It argues that although taxing college and university endowments is a possible legislative tool for making higher education more affordable for more Americans, exempting religious schools from such taxes both runs counter to this goal and violates the Establishment Clause of the U.S. Constitution. If Congress chooses to expand college and university taxation, it should do so in a way that effectively addresses the college affordability crisis and treats religious and secular institutions alike.