The February issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as four student notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Safe Injection Sites and the Federal "Crack House" Statute by Professor Alex Kreit
In his Article, Professor Kreit examines the legality of operating a state-run safe injection facility. While many opponents assert that safe injection facilities directly violate the federal "Crack House" statute, Professor Kreit argues that an obscure provision of the Controlled Substances Act may actually allow state employees to legally operate safe injection sites. A provision of the Controlled Substances Act provides immunity from federal drug laws to authorized state actors, such as police handling narcotics in an undercover operation. In interpreting this provision, Professor Kreit argues that states may similarly authorize employees to run safe injection facilities, thereby immunizing safe injection site operators from the federal crack house statute.
Extending the Sex-Plus Discrimination Doctrine to Age Discrimination Clams Involve Multiple Discriminatory Motives by Professor Marc McAllister
In his Article, Professor Marc McAllister explains that federal employment discrimination statutes make it unlawful to discriminate against employees on the basis of certain protected characteristics, including race, color, religion, national origin, sex, disability, and age. Under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee based on a combination of two protected traits, such as race and sex. Nevertheless, these claims—which Professor McAllister refers to as multiple-motive claims—tend to fail when one of the protected traits is age. Whether brought under Title VII or under the Age Discrimination in Employment Act of 1967 (ADEA), Professor McAllister argues that courts should authorize discrimination claims combining age with some other immutable characteristic, like race or gender, and proposes an amendment to the ADEA that would authorize such claims.
In her Article, Professor Semet examines the 2011 law that set up a ten-year pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen select district courts. She analyzes trial court patent cases filed from September 2011 through September 2016, focusing specifically on whether the appellate treatment of cases heard by district court judges participating in the pilot program differs from the treatment of cases heard by non-pilot judges. Of the several hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, her results indicate that, even controlling for other factors, the Federal Circuit does not overrule non-pilot judges more than pilot judges. After discussing the empirical results, Professor Semet proposes suggestions for reform.
In his Note, Peter Diliberti predicts that Delaware's current legal treatment of “disclosure only settlements” will result in a decrease of litigation in Delaware courts. States and plaintiffs’ attorneys have a dynamic that is primarily driven by the attorney’s fees they receive. Delaware has recently applied a heightened standard when evaluating these settlements - the "plainly material standard” - which makes it more difficult for plaintiffs’ attorneys to receive attorney’s fees. Delaware has previously responded to a loss of litigation by dismissing fewer cases, in an effort to continue to attract the business of litigation. Diliberti argues that Delaware courts will promote something known as the “mootness dismissal scenario” in an effort to remain an attractive venue for plaintiffs’ attorneys.
In his Note, Brandon explores a dissenting shareholders' available defense mechanism in the face of a merger: the appraisal remedy. The appraisal remedy was designed to provide shareholders with cash in an amount equal to the fair value of their shares so long as they oppose a proposed merger. Brandon reveals, however, that dilapidated record keeping methods and inaccurate assumptions about stock ownership have stolen this defense mechanism away from dissenting stockholders, despite their otherwise clear intentions to oppose a merger. These silly, unintended procedural snags have cost stockholders hundreds of millions of dollars because the stockholders effectively forfeited their right to have their shares appraised. Brandon argues that blockchain technology can tidy-up the corporate record keeping methods that are at the root of these problems.
In her Note, Lauren Koster weaves together the history of public education rights for students with disabilities in the United States with the current state of educational access for incarcerated juveniles with disabilities. She considers the shortcomings of education-specific disability rights legislation for incarcerated juveniles and incarceration-related barriers that these students face when asserting their educational rights. Ultimately, Koster argues that attorneys ought to bring more claims under the broader reach of the Americans with Disabilities Act (ADA) when advocating for this vulnerable population and creates a blueprint for such advocacy in light of developing case law
In her Note, Kayleigh McGlynn argues that state legislatures and Congress should amend post-conviction DNA testing statutes to provide greater access to DNA database searches. Some wrongly convicted individuals cannot prove their innocence based on DNA testing alone, so they need to take an additional step—searching DNA databases to identify the actual perpetrators of the crimes that they were wrongly convicted of. In states without statutory access to DNA database searches, the decision whether to grant a search is often left to the discretion of the law enforcement agency administering the database. Kayleigh analyzes three state post-conviction DNA testing statutes that provide access to DNA database searches, as well as the federal post-conviction DNA testing statute, and recommends amendments to expand access to DNA database searches.