The October issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as four student notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Articles
Meme Investors and Retail Risk by Sue S. Guan
With recent volatile “meme stock” trading, scholars are increasingly analyzing different participants in the stock market. Trading in stocks like GameStop and AMC, among others, boomed because of retail traders’ coordinated and uncoordinated behavior stemming from interactions on online fora. Professor Sue Guan focuses on this subset of investors to study how retail investors interact with the stock market, finding that retail trades may help predict future patterns in the stock market. The increased presence of retail investors in the market brings with it coordinated retail risk, an underrecognized form of risk. Professor Guan uses retail risk to categorize different types of retail investors: coordinated and uninformed investors, coordinated and informed investors, and coordinated meme investors. In doing so, Professor Guan emphasizes the importance of paying attention to retail investor behavior, the consequences of retail trading, and the need for better information for trading.
Toward a “Tender Offer” Market for Labor Representation by Aneil Kovvali and Jonathan R. Macey
In this Article, Professors Kovvali and Macey observe that American workers are not sharing adequately in economic growth and that the traditional approach to collective bargaining is not doing enough to secure worker gains. They argue that a radical approach is necessary to fix the problem of declining unions, and take inspiration for their solution from corporate governance law. Professors Kovvali and Macey propose the alternative of allowing pro-worker investors to offer workers cash upfront for the right to represent them. This alternative path to certifying an entity as the exclusive bargaining representative for a group of workers would, they argue, both provide more concrete benefits to workers early in representation and give workers the opportunity to select representatives with demonstrated capacity to improve their conditions.
Going Concerns and Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform by Alexander Gouzoules
In this Article, Professor Alexander Gouzoules traces the fossil fuel industry’s use of Chapter 11 of the Bankruptcy Code. Originally designed for the railroad industry, Chapter 11 is now a tool for otherwise insolvent fossil fuel companies to persist as “going concerns,” and, eventually, recovered companies. Professor Gouzoules proposes legislative reforms that would require fossil fuel companies to liquidate under Chapter 7, with an environmental trustee, and with consideration given to the public interest in liquidation. This proposal draws on similar procedures utilized when stockbrokers file for bankruptcy, in railroad bankruptcies, and in the mass tort context. Ultimately, Professor Gouzoules argues that by treating fossil fuel producers like those similar entities filing for bankruptcy, the Bankruptcy Code can help mitigate the harms of climate change.
Notes
"Let's Get 'Phygital'": How the Collision of Physical and Digital Commerce Compels the End of the Nexus Standard in ADA Adjudication by Michele Astor-Pratt
When Congress enacted the Americans with Disabilities Act (ADA) in 1990, it guaranteed equal access to people with disabilities in a variety of settings, including places of public accommodation. Despite providing examples of public accommodations in the Act, Congress did not define them as "physical." Consequently, courts have struggled to apply the Act to nonphysical "places," ranging from insurance policies to websites. Some courts apply a nexus standard to extend the Act's coverage, but the standard's inconsistent application has led to unpredictable outcomes, affecting businesses that struggle to comply with the Act and disabled people who cannot depend on access to goods and services. These difficulties were particularly poignant during the COVID-19 pandemic, when many Americans relied on digital access to everyday necessities. In response, businesses increased digital operations, leading to many hybrid physical-digital ("phygital") public accommodations. As we move out of the pandemic, many businesses maintain these phygital operations, and this Note argues that the nexus standard is ill-equipped to protect the rights of disabled Americans in an increasingly digital world. This Note instead advocates for an end to the nexus standard to compel Congress's inclusion of nonphysical places in the ADA, fulfilling the Act's promise of equal access and opportunities for people with disabilities.
Reinforcing a Crumbling Wall: Prohibiting Delegations to Religious Foster Care Agencies by Andrew G. Loucks
In 2021, in Fulton v. City of Philadelphia, the U.S. Supreme Court held that the First Amendment's Free Exercise Clause prohibits Philadelphia from canceling a foster care contract with a religiously affiliated agency because of that agency's refusal to work with same-sex couples. The religious agency, Catholic Social Services of Philadelphia, exercised delegated state power to determine which otherwise eligible applications could obtain the certification necessary to serve as foster parents. Although the Supreme Court did not consider the Establishment Clause implications of this situation, it has previously held that the Establishment Clause prohibits the government from delegating its authority to religious organizations. This Note argues that this religious nondelegation rule provides the appropriate framework for considering the constitutionality of religiously based discrimination in foster care licensing.
Deviant Interpretations: Re-evaluating the Evidentiary Admissibility of a Complainant's Prior Group Sexual Acts by Emily K. O’Hara
Rape shield laws generally prohibit the admission of a complainant’s sexual history intoevidence. Legislatures crafted these laws, some of which date back to the 1970’s, to prevent complainants from experiencing invasive inquiry and humiliation. Many rape shield rules grant exceptions for prior consensual sex between complainant and defendant. The exceptions become murkier, however, when the complainant and the defendant previously engaged in consensual group sex. Technically, this prior sexual behavior could fall under certain consent exceptions, but courts treat this behavior inconsistently. Feminist legal scholars are also divided over how to treat sexual history evidence. This Note proposes a re-evaluation of the legislative approach to rape shield law, specifically addressing group sexual relations. To destigmatize unconventional relationships and uphold a defendant’s rights, rape shield consent exceptions should include consensual complainant-defendant group sex evidence. Legislatures should lead courts in reclassifying such evidence to produce sweeping change and prevent piecemeal implementation, which could do more harm to victims of sexual assault. In time, these changes, along with greater societal sexual literacy, may also encourage sexual assault victims to report without fear of reprisal from juries and the broader community.
Enforcement of Honest Services Fraud Post-Kelly v. United States by Andrew Fishman
Federal prosecutors have typically taken the lead when it comes to prosecuting corruption at the state and local level. But over the past 40 years, the Supreme Court has pushed back against Congress' attempts to create broad authority for the federal government to police novel acts of corruption. When the Supreme Court overturned the convictions stemming from the New Jersey Bridgegate scandal in Kelly v. United States (2020), a clear message was sent. Federal prosecutors are not able to reach all acts of corruption, especially those by state and local public officials. This Note proposes a model honest services statute which states can adopt to fill this void and successfully seek convictions of previously uncaptured acts of corruption.