The February 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.
Reorganizing Healthcare Bankruptcy by Professor Laura N. Coordes
In her Article, Professor Coordes analyzes healthcare providers as part of a growing group of “bankruptcy misfits,” in the sense that bankruptcy does not work for them the way it works for other businesses. She discusses how the Bankruptcy Code (“Code”) is insufficiently specific concerning healthcare debtors and how the Code lacks an organizing principle to allow courts to reconcile the competing players and interests in healthcare bankruptcy cases. Ultimately, Professor Coordes suggests creating separate Code subchapters for healthcare business bankruptcies to allow Congress to clarify many aspects of healthcare bankruptcy and enable the development of specific procedures and a distinct organizing principle unique to healthcare provider bankruptcies.
The Sport of Cybersecurity: How Professional Sports Leagues Can Better Protect the Competitive Integrity of Their Games by Professors Nathaniel Grow & Scott J. Shackleford
In their Article, Professors Grow and Shackleford discuss the growing integration of technology in professional sports and the cyber risk it poses. Their Article breaks new ground by examining how the four major U.S. professional sports leagues—Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League—are protecting themselves from these cyber risks that threaten the competitive integrity of their games. Finally, the Article proposes ways in which the leagues could do more to proactively mitigate their cyber risk.
Democracy, Bureaucracy, and Criminal Justice Reform by Professor Lauren M. Ouziel
In her Article, Professor Ouziel examines moments of political transition in criminal justice, when public preferences on criminal justice policy are in flux, and explores the political and institutional arrangements that alternatively impede, permit, or accelerate a resulting change in criminal enforcement on the ground. Drawing on the democracy/bureaucracy framework developed in the fields of political theory and public administration, Professor Ouziel considers how these fields and others can enrich our understanding of current political and institutional dynamics in American criminal justice. Finally, she argues that the very features of the democracy/bureaucracy relationship capable of slowing democratically sanctioned change in criminal enforcement can also end up hastening political shifts. When properly leveraged, the criminal enforcement bureaucracy can help realize deliberative and participatory democratic ideals.
Rethinking Municipal Corporate Rights by Professor Hannah J. Wiseman
Professor Wiseman argues for enhanced attention to municipal corporate rights in the context of federalism and constitutional rights. Although courts have suggested that municipalities lack constitutional rights, and states increasingly preempt local governments’ abilities to address societal concerns, Professor Wiseman asserts that there are many municipal rights in existing law, particularly if one extends the functionalist theory of the corporation to encompass municipal corporations. She concludes by offering two functional considerations for courts in considering preemption questions and constitutional rights cases. First, would protecting the municipality against state preemption, or granting it protection under a federal constitutional right, achieve the core purposes of intrastate federalism or the constitutional right? Second, how would these favorable outcomes for a municipality help or harm its role, both as a government and corporate provider of a city brand and services?
In her note, Caroline Enright discusses the process by which municipalities in Massachusetts privatize delinquent property tax liens, often providing a windfall for investors at the expense of struggling homeowners. Caroline describes the current statutory framework, explains how the policy operates in practice and discusses recent cases in other states that addressed similar tax foreclosure schemes. Her Note addresses the varying viewpoints on whether the tax foreclosure process is sound public policy, and argues that although it was originally promulgated as a tool to benefit municipal tax collectors, the policy’s results are unjust and likely unconstitutional. Caroline argues that the legislature should reconsider the Commonwealth’s current policy regarding the privatization of delinquent property tax liens and treatment of surplus from the subsequent sale, and enact reform to protect vulnerable members of society.
Isaac Lederman’s Note examines the rules governing foreign investment. Congress and the courts have refrained from providing judicial review of the executive branch’s decisions to prevent foreign investors from acquiring certain assets on national security grounds. After tracing how this state of affairs came to be, Isaac argues that this freedom from judicial review has enabled the executive branch to carry out arbitrary actions that damage its legitimacy. As a result, he calls for Congress and the courts to provide explicitly for judicial review of the executive branch’s actions in this area.
Emma McBride’s Note explores possible damages for the negligent loss of frozen eggs. Although the egg freezing industry has rapidly grown in recent years, there remains little legal guidance regarding frozen eggs. After reviewing property law’s application to the human body and the overall limitations for emotional distress damages in negligent property loss, Emma discusses how frozen eggs are likely to be legally classified as property. Because of this classification, women are very unlikely to receive damages beyond the fair market value of their lost eggs. Emma argues that emotional distress damages should be available to women for such property loss.
Watt Now?: Smart Meter Data Post-Carpenter by Sarah Murphy
In Sarah Murphy’s Note, she discusses the dangers of smart meter data and the evolving Fourth Amendment framework in response to technological developments. Specifically, she considers the 2018 decision in Carpenter v. United States, where the Supreme Court recognized that a warrant may be required in the “rare case” where a person has Fourth Amendment rights in data held by a third party. She argues that smart meter data fit the “rare case” envisioned by the Supreme Court in Carpenter in which police require a warrant, not a subpoena, to access the data.