The March issue of Boston College Law Review is now available. The issue features four articles by outside authors as well as two student notes. Summaries of the six pieces can be found below. The full texts are also available on the BCLR website.

Stepping Out of the Solicitor General's Shadow: The Federal Circuit and the Supreme Court in a New Era of Patent Law by Paul R. Gugliuzza and Pyry P. Koivula

This Article studies decades of patent cases and concludes that the dynamics between the Federal Circuit, Solicitor General, and Supreme Court are shifting. For decades, the Solicitor General was so successful in getting the Supreme Court to overturn Federal Circuit patent precedent that the circuit court was said to “stand in the shadow of the Solicitor General.” But the authors observe that the Supreme Court is increasingly rejecting the Solicitor General’s recommendations about which Federal Circuit patent cases the Court should hear, and increasingly rejecting the Solicitor General’s arguments on the merits of the patent cases it decides. This Article argues these changes constitute a shift in power over patent law toward the Federal Circuit, but also toward the U.S. Patent Office.

Justifying Business Trusts by Eric C. Chaffee

In this Article, Professor Chaffee studies the role and importance of the business trust, referred to as a “common law corporation.” The Article compares business trusts and corporations, both of which serve similar functions. It further evaluates whether business trusts are still important in a modern economy dominated by corporations. The Article determines that business trusts are still significant, both independent of and as a contemporary to the corporation. Business trusts, Professor Chaffee argues, should be preserved because such trusts diversify investments, reduce systemic risk, and, as “spontaneous ordering systems,” provide knowledge of how a business should operate. 

Toward a Presumptive Admission of Medical Records Under Federal Rule of Evidence 803(4) by Paul W. Kaufman & Christopher J. Merken

This Article argues for a simplified approach to Federal Rule of Evidence 803(4): that courts should presumptively admit medical records prepared for actual medical purposes. The authors critique the current state of hearsay law as applied to medical records as disconnected from the text of Rule 803(4), the broad intent behind the rules of evidence, and the realities of medical records. After tracing the different and often confusing paths that courts take in deciding whether certain medical records can be admitted into evidence, the authors argue that a plain reading of Rule 803(4) calls for a more straightforward approach: records prepared for actual medical purposes should be presumptively admissible and records prepared for litigation should be presumptively inadmissible. 

The Historian's Case Against the Independent State Legislature Theory by Rosemarie Zagarri

In this Article, Professor Zagarri demonstrates that the independent state legislature theory has no basis in historical fact. The theory claims that the U.S. Constitution’s Elections Clause grants state legislatures near-plenary power to regulate federal elections, independent of other state actors, state courts, and state constitutions. In December 2022, the Supreme Court heard a case—Moore v. Harper—premised on this theory and several sitting Justices have indicated some support for the theory. Professor Zagarri, a historian, argues that overwhelming evidence from the founding era refutes the independent state legislature theory.

Exercising Your Corporate Rights: Self-Incorporation as an Equity Alternative to Student Loans by J. Carrington Kyle

With the rise of student debt over the past decades, income share agreements emerged as a popular financing alternative to the traditional student loan. Nonetheless, the recent Consumer Financial Protection Bureau consent order declaring income share agreements to be debt exacerbated the problem and eliminated this alternative to student loans. This Note offers another option to avoid the negative impact of this new ruling: self-incorporation. Students form corporations that reflect the students’ earning potential by crafting certificates of incorporation that largely recreate the substance of an income share agreement. Students can take control while seeking active buyers of shares from university to university as each endowment fund would serve as an accredited investor for the purposes of private placement. In addition to providing an equity alternative for the student education financing market, self-incorporation could help protect students by offering them substantially more bargaining power than an income share agreement.

Deceiving the Young to Give to Themselves: Eliminating Payment for Order Flow to Ensure Loyal Agents by Nicholas Whitten

In October 2021, the U.S. Securities and Exchange Commission released its Staff Report discussing the potential causes of retail-brokerage firms' decision to halt trading in certain "meme-stocks" in January of 2021. Although the SEC's report failed to identify any single cause for the brokerage firms' decision to freeze trades in these stocks, it did identify certain areas for future regulatory review, including payment for order flow, the process through which brokerage firms like Robinhood receive payment from market makers in exchange for their investor’s orders. Historically, the SEC has regulated payment for order flow through enhanced disclosure requirements and brokerage firms' duty of best execution. But the events of January 2021 and the subsequent scrutiny that followed raised serious questions surrounding potential conflicts of interest that payment for order flow may create for brokerage firms that participate in this practice. This Note focuses on the issues presented by payment for order flow arrangements as they relate to the fiduciary duties owed by brokerage firms to investors. Ultimately it concludes that because payment for order flow potentially incentivizes brokerage firms to break their duty of loyalty to their investors, the SEC should ban the practice consistent with steps already taken by certain U.S. brokerage firms and foreign regulators.