The November 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.
The Duty to Read the Unreadable by Professors Shmuel I. Becher & Uri Benoliel
In their Article, Professors Becher and Benoliel analyze the readability of the sign-in-wrap contract, a prevalent type of agreement that consumers accept when signing up for popular websites like Facebook and Amazon. They apply well-established linguistic readability tests to the five hundred most popular websites in the U.S. that use such sign-in-wrap contracts. Their study reveals that the average readability level of these agreements far exceeds a level that would be accessible to the general public. Professors Becher and Benoliel explore the implications of this revelation on the design of consumer contract law, focusing on the one-sided application of the duty to read doctrine, which holds consumers accountable for reading contracts but does not generally impose a duty on suppliers to draft readable contracts.
A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy by Professor Pamela Foohey
Professor Foohey’s Article explores how societal perceptions of consumer bankruptcy’s procedures impact the goals of the system. Professor Foohey crafts a theory of consumer bankruptcy’s procedural deficiencies by combining procedural justice and related research with what is known about those who file bankruptcy. She argues that if consumer bankruptcy is indeed procedurally bankrupt, then the “fresh start” promised by the bankruptcy system may actually impede people’s return to their communities and to the credit economy. In response, Professor Foohey proposes two changes—one modest and one more drastic—to the consumer bankruptcy process to enhance perceptions of bankruptcy’s procedural justice and the legitimacy of the system.
Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains by Professor Alix Rogers
In her Article, Professor Rogers discusses the historical treatment and current legal status of Native American remains. Professor Rogers analyzes Native American remains under the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”) and the status of these remains as familial and tribal property. Contrasting this history and treatment with treatment of non-Native American remains, Professor Rogers argues that the communal property approach embodied by the Act enables Native Americans to protect their dead more effectively than any other American group and represents an intriguing pathway for human biological materials regulation reform beyond Native American remains.
The General Knowledge, Skill, and Experience Paradox by Professor Camilla A. Hrdy
In her Article, Professor Hrdy discusses the paradox that employers are encouraged to communicate trade secrets to employees, but this information loses protection if it becomes part of those employees’ unprotectable general knowledge, skill, and experience. Her Article traces the roots of the general knowledge, skill, and experience doctrine in the common law and shows how it has been incorporated, though never actually codified, in statutes, including the Defend Trade Secrets Act of 2016. Professor Hrdy argues that the general knowledge, skill, and experience exclusion was intended to preserve an employee’s right to improve her skills on the job and thereafter, transfer those skills to a different job or business endeavor. Ultimately, Professor Hrdy presents a framework for courts to use when applying the Exclusion.
Where One Marketplace Closes, (Hopefully) Another Won’t Open: In Defense of FOSTA by Abigail W. Balfour
In her Note, Abby Balfour looks at the most recent Congressional attempt to curb sex trafficking, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). Congress first criminalized the act of sex trafficking in 2000 and has since extended culpability to a growing array of facilitators. But the Internet has persisted as its biggest participant, giving traffickers the platform to advertise their victims under the guise of consensual personal services or escort ads. FOSTA extends criminal and civil liability to internet service providers that knowingly post these advertisements. Alleging that it infringes upon First Amendment freedoms by potentially criminalizing otherwise legal speech, the tech community has ardently opposed the bill. Abby argues that FOSTA correctly addresses sex trafficking in today’s Internet era and that its core is constitutionally sound because the First Amendment does not protect speech that furthers criminal conduct.
Charges to Be Declined: Legal Challenges and Policy Debates Surrounding Non-Prosecution Initiatives in Massachusetts by John E. Foster
John Foster’s Note examines a novel addition in the “progressive prosecutor” playbook—non-prosecution of certain nonviolent offenses. Enacted through internal procedure of the Suffolk County District Attorney’s Office, the non-prosecution policy faces legal challenge as a violation of separation of powers, victims’ rights laws, and Massachusetts ethics rules. As a normative matter, scholars and law enforcement officials debate the impact that the policy will have on incarceration, public health, local neighborhoods, and the rule of law. Jack argues that the expansive reach of prosecutorial discretion will continue to protect the non-prosecution policy from legal challenge so long as its consequences remain palatable to institutional stakeholders and the public.
A Girl’s Right to Bare Arms: An Equal Protection Analysis of Public-School Dress Codes by Jillian R. Friedmann
Jillian Friedmann’s Note analyzes public-school dress codes targeting female students in the context of the Equal Protection Clause. In particular, Jillian examines the relevant case law as it has developed from the 1970s to present day in order to determine when a public school’s proffered justification is acceptable. She concludes that many of the earlier cases would be decided differently in light of subsequent Supreme Court precedent. Ultimately, Jillian argues that the commonly held notion that girls’ clothing can be distracting may no longer be a sufficient justification to defeat an Equal Protection challenge and that a more genuine justification is needed instead.
Shielding the “Enemy of the People”: Protecting the Reporter’s Privilege in the Age of Social Media by Ezra D. Dunkle-Polier
Ezra Dunkle-Polier’s Note examines the impact of reporters’ shield laws on social media during an era of hostility toward press freedoms. After tracking the history of anonymous reporting, Ezra discusses the development of the reporter’s privilege, and considers how to ensure protections for modern journalists. Ultimately, Ezra argues that to best protect digital journalists and social media users, Congress should enact a federal reporter’s shield that explicitly considers the revolutionary advancements in internet communication.