The January 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.
Property, Concepts, and Functions by Eric R. Claeys
In his Article, Professor Claeys reexamines property concepts and definitions of property, arguing that property rights necessarily include both sole ownership rights and nonpossessory rights. To illustrate his expanded understanding of property concepts, Professor Claeys examines legal interests in tenancies in common; easements; revocable licenses; mortgages; covenants running with the land; riparian rights; and appropriative rights and appurtenant ditch easements.
Why Healthcare Companies Should Be(come) Benefit Corporations by Yaniv Heled, Liza Vertinsky, & Cass Brewer
In their Article, Professors Heled, Vertinsky and Brewer argue that there is an inherent problem with relying on profit-focused corporations to drive healthcare innovation and provide healthcare products and services since traditional corporations are structured to focus on profits rather than to tend to the public need, a focus that is reinforced by the legal framework that governs them. In their Article, they suggest that a change in corporate form can be used to more closely align private incentives with public need by changing corporate incentives from the inside. They propose that companies involved in the provision of healthcare products and services should be encouraged or even required to assume alternative business forms that would both enable and require them to consider the needs of a broader range of stakeholders and the public interest in addition to shareholder value. They identify benefit corporations, broadly defined, as one preferred mechanism for achieving this.
In his Article, Professor Kades argues that the elimination of the Rule Against Perpetuities in the United States will result in a collection of inherited wealth creating dynastic trusts for future generations. Drawing on the work of economist Thomas Piketty, Professor Kades illustrates the potential devastating effects of perpetual trusts. Finally, Professor Kades provides innovative normative solutions to ameliorate the demise of the Rule Against Perpetuities and curb the negative effects that may result without it.
Mass Arrests & the Particularized Probable Cause Requirement by Amanda Peters
In her Article, Professor Peters examines the history of mass arrests in America and analyzes the probable cause requirement of the Fourth Amendment along with existing federal cases on multiple-suspect, group, and mass arrests, to demonstrate that the jurisprudence in this area is settled and clear. She argues that the Fourth Amendment’s probable cause analysis is and should be no different for individual arrests than for high-volume arrests.
In her Note, Amy-Lee Goodman discusses how the Food and Drug Administration's (FDA) refusal to define the term "natural" is causing a substantial rise in food-labeling litigation over allegedly mislabeled "natural" products. With increasing rates of chronic diseases, consumers are demanding more transparency in food labeling and healthier food products. Yet, there is a distinct discrepancy between how consumers and manufactures understand what the label “natural” should mean on food products. Without regulatory guidance, Goodman identifies the subsequent problems with the judicial and legislative attempts to define the term. In order to curb litigation and resolve consumer confusion, Goodman argues for the courts to apply the primary jurisdiction doctrine to food mislabeling cases, and advocates for the FDA to promulgate a formal definition of "natural".
In her Note, Madeline Roe argues how the emergence of driverless cars in the United States calls for detailed state regulation and will shift accident liability from driver to manufacturer. Driverless cars are currently being tested across the country and while some states have extensive regulatory codes, others essentially leave these vehicles unchecked. Roe additionally compares driverless cars with surgical robots, to serve as an example of a liability framework from an analogous form of artificial intelligence.
In her Note, Lauren Stewart argues that the rise of businesses’ use of biometric identification technology and the lack of widespread biometric data regulation risks subjecting consumers to commercial misuse. Federal data privacy regulations are industry-specific and not comprehensive. State statutes that do provide comprehensive biometric data regulation are inconsistent. As more states look to regulate businesses’ collection and use of biometric data, Stewart advocates that states should enact uniform statutes that seek to balance protecting consumers’ biometric data from discriminatory use and businesses’ use of biometric data to enhance security.
In his Note, Hale McAnulty argues that United States renewable energy laws have undermined the very goals they purport to advance by providing significant financial benefits to the Waste-To-Energy industry. McAnulty explores the history of renewable energy law in the United States, and how it gave life to the Waste-to-Energy industry. McAnulty then relies upon significant research that demonstrates that despite being classified as a type of renewable energy, Waste-to-Energy is not environmentally friendly, nor a truly sustainable practice. McAnulty thus argues that the laws must be amended at both the federal and state level to exclude Waste-to-Energy from future government benefits.