The April issue of Boston College Law Review is now available. The issue features four Articles by outside authors as well as four student Notes. Summaries of the eight pieces can be found below. The full texts are also available on the BCLR website.
Criminalizing Race: Racial Disparities in Plea-Bargaining by Carlos Berdejó
Most of the empirical research examining racial disparities in the criminal justice process has focused on its two endpoints—the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constrain judges’ ultimate sentencing discretion. In this Article, Professor Berdejó addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction. The results presented in this Article reveal significant racial disparities in this stage of the criminal justice process.
Aggregation on Defendants' Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation by Andrew D. Bradt & D. Theodore Rave
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 impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s home turf or in federal multidistrict litigation (MDL). Faced with this choice, we believe that most plaintiffs will turn to MDL. In their Article, Professors Bradt and Rave examine why Bristol-Myers will have this effect and they explain how MDL’s hybrid structure facilitates centralized mass-tort litigation in federal court, even as the Court’s restrictive view on personal jurisdiction prevents similar aggregation in state court.
Lost Profits in a Multicomponent World by Bernard Chao
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 multicomponent products contain thousands, sometimes hundreds of thousands, of different features. In recent years, the Supreme Court has sensibly rejected attempts to base patent remedies on entire products in the context of permanent injunctions and design patents. The Federal Circuit nonetheless continues to allow patentees to recover all the lost profits associated with an entire infringing product. In his Article, Professor Bernard Chao argues that the failure to consider apportionment is wrong on both the law and policy.
Crowdfunding Civil Justice by Ronen Perry
In his Article, Professor Ronen Perry provides a systematic law and economics analysis of civil litigation crowdfunding. The Article 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 frivolous litigation. Thus, the Article argues it should be minimally regulated by securing disclosure of relevant information to potential investors. Non-investment-based crowdfunding of process costs, however, should be subject to professional vetting, which will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. The Article concludes by arguing that non-investment-based crowdfunding of outcome costs should be prohibited when it undermines the primary objectives of substantive law.
Correcting Correctional Suicide: Qualified Immunity and the Hurdles to Comprehensive Inmate Suicide Prevention by Venus Chui
In her Note, Venus Chui discusses the prevalence of inmate suicide in jails and prisons across the United States. She explains how the Supreme Court's acceptance and interpretation of the qualified immunity doctrine contributes to the lack of progress in inmate suicide prevention, as correctional leaders are currently shielded from liability even when their facilities do not implement adequate suicide prevention protocols. She argues that in order to incentivize the implementation of comprehensive suicide prevention policies in jails and prisons, the federal government should condition funding to state and local correctional facilities on their implementation of such policies.
Wouldn’t It Be Nice: Searching for Clarity in Intermittent Strike Adjudication by Thomas B. Fiascone
In his Note, Tom Fiascone discusses the history of intermittent strike jurisprudence in the United States, considered in light of a recent attempt to try and add a needed measure of clarity to the field. He explores how intermittent strikes came to be adjudicated in the inconsistent manner that they are today, without a clear test to determine when a particular strike falls under NLRA protection. He argues that reforming the current manner in which these cases are decided would be beneficial to both employers and employees, and concludes that with some minor changes to a recently proposed test for determining legality of intermittent strikes, a mutually beneficial doctrine could be established for use in future cases.
Perfect Hedge: Adding Precision to the Proposed SEC Rule on Investment Company Use of Derivatives with a Hedging Exception by David Miller
In his Note, David Miller argues that the SEC’s Proposed Rule 18f-4 should be implemented to prevent possible hazardous derivative use by investment companies. He proposes that the rule should, however, allow for the beneficial and vital use of hedging as an exemption in the calculation of fund risk exposure and should also use expected shortfall instead of Value at Risk in making such a calculation. He concludes that these augmentations to the rule would allow investment companies to benefit from derivatives and still follow the Investment Company Act’s goal of protecting unsophisticated investors.
The Face-Off Between Data Privacy and Discovery: Why U.S. Courts Should Respect EU Data Privacy Law When Considering the Production of Protected Information by Samantha Cutler
In her note, Samantha Cutler explores the "court-ordered law breaking" that occurs when foreign parties involved in U.S. litigation are ordered to produce information that is protected by EU data privacy law. She explains the strengthening of these laws over time, including significantly increased sanctions, and discusses how EU regulators have been cracking down on prominent multinational companies. Samantha argues that these developments, combined with the benefits of international comity and the intrinsic value of privacy, mean that U.S. courts should more strongly consider EU data privacy law in discovery deliberations, and, when appropriate, order discovery to be conducted through the Hague Evidence Convention. U.S. courts can no longer dismiss EU data privacy law as inconsequential.