The January issue of Boston College Law Review is now available. The issue features five articles by outside authors as well as four student notes. The full texts are also available on the BCLR website.
The Case for Tipping and Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation by Samuel Estreicher & Jonathan Remy Nash
In their Article, Professors Estreicher and Nash present an argument against recent tip-banning movements in the food service industry. They propose elimination, or at least a reduction, of restrictions on employee tip-pooling as a more profitable and sustainable route. This unrestricted sharing arrangement (excluding only certain management-level employees), instead of disproportionately rewarding certain employees, can foster a cooperative work environment beneficial to all.
Organic Corporate Governance by Robert C. Bird and Stephen Kim Park
In their Article, Professors Robert C. Bird and Stephen Kim Park identify shortfalls of attempts to improve corporate governance through regulatory interventions that empowering shareholders. They instead propose an innovative model that looks within the “black box” of the firm. The authors combine legal analysis with insights from organizational management and finance scholarship, and argue that corporations can overcome weak governance practices through forces that are driven by self-interested behavior of internal corporate actors.
The Architecture of Contract Innovation by Matthew Jennejohn
In his Article, Professor Matthew Jennejohn discusses the economic and efficiency motivations underlying M&A contract formation. Drawing on theories from leading scholars in the field of contract economics, Professor Jennejohn proposes a new theoretical framework for analyzing how complex contracts are structured. He finds that contract "modularity" has, to some extent, been displaced by a more integrated and specialized approach to contract drafting.
Non-Enforcement Takings by Timothy M. Mulvaney
In his Article, Professor Timothy Mulvaney poses the idea that non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. He therefore argues that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations.
The Federal Equity Power by Michael T. Morley
In his Article, Professor Michael Morley argues that the “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. He states that equity should not be understood as a single, independent body of principles that a federal court must apply in all cases that come before it. He then delves into state-law claims, federal statutory claims, and constitutional law claims to conclude that a federal court’s power to impose an equitable remedy stems, if at all, from the legal authority that establishes the underlying right
Playing a Man Down: Professional Sports and Stadium Finance—How Leagues and Franchises Extract Favorable Terms from American Cities by Nicholas Baker
In his Note, Nicholas Baker provides a discussion of the tax-exempt bond structure that has given rise to team-favorable financing arrangements for many of the stadiums constructed around the United States. By way of providing an overview of the mechanics of stadium finance, and exploring the limited bargaining power retained by municipalities in the aftermath of the Tax Reform Act of 1986, his Note demonstrates that further reforms are needed to rectify the imbalance in bargaining power.
“Warning: Use May Result in Cruel and Unusual Punishment”: How Administrative Law and Adequate Warning Labels Can Bring About the Demise of Lethal Injection by Julia Eaton
In her Note, Julia Eaton grapples with the issue of federal regulation of lethal injection drugs, and lack thereof, in the United States. The Federal Food, Drug, & Cosmetic Act seemingly prohibits the Food & Drug Administration from regulating drugs for off-label use in an effort not to undermine the expertise of physicians when treating patients. After a deep textual analysis of Supreme Court precedent, statutory language, and FDA regulations, she concludes that the FDA has the authority to require manufactures to amend warning labels to warn against pain and suffering when a causal connection is found between the drug and that pain and suffering. She further poses that under section 553(e) of the Administrative Procedure Act, private citizens may petition the FDA to force regulation of lethal injection drugs for their use in executions as thus far, the FDA has failed to act on its established authority.
Remaking Making: Integrating Self-Replicating Technologies with the Exhaustion Doctrine by Adanna Uwazurike
In her Note, Adanna Uwazurike explores the intersection between self-replicating technologies and the exhaustion doctrine. As such technology becomes increasingly prevalent, how it will ultimately fit within patent law and its effect on innocent infringers remains an open question. Using Bowman v. Monsanto and self-replicating seed technology as an example, her Note recommends a new definition of “making” within the modern patent infringement framework to successfully integrate self-replicating technologies into the exhaustion doctrine.
The Price Tag on Designer Babies: Market Share Liability
In this Note, the author seeks to present market share liability as a means for compensating future victims of problematic genetic alterations. CRISPR-Cas9 and other genetic technology poses to make human gene engineering a routine appointment. The author compares the impact of generational liability in the human genetic context with that of DES victims from a defective miscarriage pill, and contends that market share liability can incentivize conservative entrance into the genetic field, spread costs for generational harm, and streamline compensation for victims of faulty procedures.