The February 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 available on the BCLR website.
Commodifying Consumer Data in the Era of the Internet of Things by Stacy-Ann Elvy
Internet of Things (“IoT”) products generate a wealth of data about consumers that was never before widely and easily accessible to companies. In her Article, Professor Stacy-Ann Elvy explores the connection between the types of data generated by the IoT and the financial frameworks of Article 9 of the Uniform Commercial Code and the Bankruptcy Code. The Article critiques these regimes, which enable the commodification of consumer data, as well as laws aimed at protecting consumer data, such as the Bankruptcy Abuse Prevention and Consumer Protection Act, various state biometric data statutes, and the Health Insurance Portability and Accountability Act. Professor Elvy proposes several solutions to engender movement away from an overreliance on the notice and choice model and the terms of privacy policies, and ways to reduce the various moments of data disclosure authorized by financial frameworks.
Rethinking the Law of Legal Negotiation: Confidentiality Under Federal Rule of Evidence 408 and Related State Laws by Richard C. Reuben
When Rule 408 was enacted in 1975, the dominant model of legal negotiation was positional and adversarial bargaining, in which lawyers guarded information closely, and settlement largely focused on the economic value of the dispute. Today, however, the emerging norm of legal negotiation is more interest-based problem-solving, in which lawyers are encouraged to disclose their clients’ needs, concerns, preferences, and other sensitive information. Though helpful in problem-solving, this information might also be detrimental to the client in subsequent proceedings if the negotiation fails. The result is a perfect storm that threatens to undermine the efficacy and legitimacy of modern legal negotiation as more lawyers become aware of the limitations of Rule 408 and more courts expand upon the permissive doctrinal foundation now in place. Professor Reuben addresses this issue in his Article, and details both the contours of the problem. He proposes that this issue may be remedied by elevating Rule 408 from its current status as a “quasi-privilege” to a full and formal privilege at the federal level and then passing conforming legislation in the states.
Blank Slates by Matthew Tokson
Courts sometimes confront gaps in formal law where doctrinal sources like text, history, and precedent fail to offer guidance in resolving a particular case. When these gaps are narrow, judges can generally address them through analogical reasoning or intuition. But sometimes legal gaps are too substantial to be filled with one-off decisions, and judges are called upon to create whole legal tests without the benefit of formal guidance or constraint. Courts currently lack a theoretical framework for addressing these difficult situations. Professor Matthew Tokson analyzes these “legal blank slates” and provides a framework for addressing them. Specifically, he surveys examples of legal blank slates in areas like Fourth Amendment law, free speech, the dormant Commerce Clause, and anti-discrimination law, and draws lessons for a general theory of blank slates.
The Admissibility of Sampling Evidence to Prove Individual Damages in Class Actions by Hillel J. Bavli and John Kenneth Felter
The 2016 Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo revived the use of “representative” or sampling evidence in class actions. Federal courts are now more receptive to class plaintiffs’ efforts to prove classwide liability and, occasionally, aggregate damages, with sampling evidence. However, federal courts still routinely deny motions for class certification because they find that calculations of class members’ individual damages defeat the predominance prerequisite of Rule 23(b)(3). As a result, meritorious classwide claims founder. In their Article, Hillel Bavli and John Kenneth Felter combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the Tyson decision while satisfying Daubert, the standards of Federal Rule of Evidence 702, and the prerequisites for Rule 23(b)(3) classes.
Manufactured Deadlocks? The Problematic "Bad Faith Defense" to Forced-Sales of Delaware Corporations Under Section 226 of the Delaware General Corporation Law by Brian C. Durkin
Title 8, Section 226 of the Delaware General Corporation Law authorizes courts to force the sale of Delaware corporations when the stockholders or directors are in a state of complete deadlock. Some courts have tentatively acknowledged that a party may successfully oppose the sale by arguing that the stockholder bringing a Section 226 action has done so in bad faith by manufacturing a deadlock in the hopes of obtaining a court-ordered sale (i.e., the “bad faith defense”). In his Note, Brian Durkin explores the idea of the manufactured deadlock in Section 226 actions, and argues that in light of the fundamental difficulties in determining whether a deadlock is legitimate or fabricated, courts should move towards rejecting the legitimacy of the “bad faith defense” to court-ordered sales entirely.
Sin Taxes: Have Governments Gone Too Far in Their Efforts to Monetize Morality? by Franklin Liu
In his Note, Frank Liu explains why recent sin taxes on goods such as soda and plastic bags are different in kind from long-established sin taxes on alcohol and tobacco products, and the importance of understanding these differences for tax policymakers and legislators. The Note argues that, notwithstanding the significant allure sin taxes possess as revenue generating tools, legislators must carefully evaluate each new potential “sin” independently on its own merits, and understand the inherent limitations of sin taxes, their regressive nature, and the attenuated public health justifications that accompany many non-traditional sin taxes. Legislators should thus consider alternative methods of curbing unhealthy private behaviors, such as requiring manufacturers of sinful goods and services to affix warning labels on their offerings and improving consumer access to healthier substitutes.
Pathologizing “Radicalization” and the Erosion of Patient Privacy Rights by Kelly Morgan
In her Note, Kelly Morgan discusses Countering Violent Extremism (“CVE”), a counterterrorism strategy ostensibly aimed at preventing “radicalization” through risk assessment and intervention. She explains how broad national security and public safety exceptions within existing privacy laws allow mental health professionals participating in CVE to make potentially harmful disclosures of private patient information. She concludes by arguing that professional associations representing mental health care providers should develop policies to limit and regulate members’ participation in CVE.