The April issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as three student notes. Summaries of the six pieces can be found below. The full texts are also available on the BCLR website.
State Responsibility for Forced Migration by Pooja R. Dadhania
In this Article, Professor Dadhania argues that international refugee law fails to hold states accountable for forced migration. By contrast, she argues that the international law doctrine of state responsibility can be used to hold states to account for forced migration. The basic principle of state responsibility is that states should provide reparation for harms arising from their violations of international law. Applying state responsibility to forced migration, a state would be obligated to provide reparation, including monetary remedies and the resettlement, for forced migration caused by the state’s violation of international law.
The Queer Limits of Revenge Porn by Andrew Gilden
In this Article, Professor Gilden explores the impact of “revenge porn” laws––legislation intended to remedy the harms of the non-consensual distribution of sexual imagery––on sexual expression. Although these laws were designed with feminist goals, in practice, they leave many forms of sexual expression unprotected. Professor Gilden outlines the efforts to combat revenge porn before exploring situations in which individuals’ images are often unprotected: in public spaces, in commercial sexual engagements, and outside of traditional intimate relationships. The harmful consequences of excluding these situations from legal protection are most acutely felt by the queer community. Solutions to these exclusions, Professor Gilden argues, could take the form of civil remedies, exceptions to Section 230 of the Communications Decency Act, and the inclusion of revenge porn victims in antidiscrimination laws.
Attribution for Climate Torts by Aisha I. Saad
In this Article, Professor Saad examines the empirical climate science utilized in climate tort litigation. The science referenced in these lawsuits lags behind more novel methods of attributing liability for climate change consequences. Newer models of climate attribution could overcome barriers to litigation, including the requirements of injury-in-fact, redressability, and causation, by more clearly distinguishing the consequences of anthropogenic climate change from “natural” causes. By analogizing climate tort litigation to toxic tort litigation––and citing courts’ acceptance of the scientific evidence in toxic tort litigation––Professor Saad argues for courts’ recognition of novel attribution science in climate tort litigation.
A Jurisprudence of Doubt: Disability-Based Abortions, Eugenics, and the Undue Burden Test Post-Dobbs by Zoë R. Haggerty
In April 2021, prior to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the U.S. Court of Appeals for the Sixth Circuit created a circuit split when it held in Preterm-Cleveland v. McCloud that disability-based abortion restrictions are constitutional. Perhaps even more surprising was the Preterm-Cleveland concurrence, which suggested not only that such restrictions are permissible, but that disability-based abortions themselves are impermissibly discriminatory under the Fourteenth Amendment. This Note first reviews the history of abortion law in the United States, then argues that neither Planned Parenthood of Southeastern Pennsylvania v. Casey’s undue burden test nor the new Dobbs framework can adequately resolve the issue identified in Preterm-Cleveland, and finally suggests that courts begin their analysis of disability-based abortions with the Equal Protection Clause.
It's Reasonable to Hear the Full Story: The Admissibility of Evidence of Battering and Its Effects by Taylor L. Hobbs
When law enforcement charges battered people with crimes their abuser forced them to commit, some courts exclude evidence related to battering and therefore do not allow these victims to tell their story of abuse to a jury. In 2021, in United States v. Dingwall, the U.S. Court of Appeals for the Seventh Circuit held that evidence of battering and its effects may be admitted into evidence to support a defense of duress. Similar to the Sixth, D.C., and Ninth Circuits, the Seventh Circuit in Dingwall explained that evidence of battering and its effects may assist a jury in evaluating the reasonable person standard, an essential element of the duress defense. Contrastingly, the Fifth and Tenth Circuits exclude this type of evidence, finding that its consideration would make the jury’s assessment of an objectively reasonable person too subjective. This Note overviews the reasoning of federal circuit courts on both sides of the circuit split and, ultimately, asserts that the Seventh Circuit’s ruling in Dingwall is correct because it conforms best with the reasonable person standard and, as a result, generates fairness in criminal cases for victims of domestic abuse.
Searching for Indigenous Truth: Exploring a Restorative Justice Approach to Redress Abuse at American Indian Boarding Schools by Julia M. Zabriskie
In the summer of 2021, the discovery of unmarked student graves at former Canadian residential schools made international headlines. This revelation prompted the United States Department of the Interior to investigate the United States' own history of abuse at Indian boarding schools. The lasting impact of boarding schools presents unique legal and cultural issues. Consequently, this Note advocates for restorative justice as one solution to remedy the mistreatment at Indian boarding schools by examining similar restorative programs in Canada and Maine.