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.
The Captive Lab Rat: Human Medical Experimentation in the Carceral State by Professor Laura I Appleman
Professor Appleman’s Article explores both the history and continuance of medical experimentation on the disabled, the poor, the mentally ill, and the incarcerated. She argues that the United States’ current approach to human medical experimentation disregards informed consent and privacy, allowing the pharmaceutical and medical industries to play an outsized role in shaping clinical research. Her Article asserts that the confusing amalgam of laws, rules, and codes loosely governing such research almost entirely fails to regulate or prevent patient mistreatment and abuse. Professor Appleman concludes by offering several safeguards and solutions to protect captive, vulnerable populations from continued exploitation.
Straightwashing the Census by Professor Kyle C. Velte
In her Article, Professor Velte examines the “straightwashing” of the census and the government’s failure to collect sexual orientation and gender identity population data in government surveys. Her Article discusses how this “Identity Undercount” erases both the lived identity of LGBT people and the reality that they often live in poverty and powerlessness. Professor Velte argues that this undercount prevents policymakers from crafting meaningful policy solutions or modifying existing policies to meet the needs of the LGBT population. Her Article concludes that the government should collect sexual orientation and gender identity population data and that the near-complete failure to do so makes the government an active participant in creating and sustaining institutionalized poverty for LGBT people.
Right-Remedy Equilibration and the Asymmetric Entrenchment of Legal Entitlements by Professor Michael Coenen
Professor Coenen explains and examines the asymmetric entrenchment of legal entitlements in public law, whereby claimants seeking redress must satisfy all relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief; whereas, governments seeking to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in their favor. Using foundational constitutional cases to illustrate this asymmetry, Professor Coenen considers the extent to which it influences the development of the law. He asserts that a judge wishing to “equilibrate” against a disfavored decision granting a legal entitlement need only target a single link in the chain. In contrast, a judge wishing to “equilibrate” against a disfavored decision reducing the availability of a legal entitlement must ensure that every link remains strong. Given this asymmetry, Professor Coenen offers strategies that “entitlement-strengthening” judges might employ to resist the special headwinds they face.
Distributive Justice and Rural America by Professor Ann M. Eisenberg
In her Article, Professor Eisenberg argues that rural communities did not just “die”—they were sacrificed. Her Article offers a competing narrative to the “dying” or “forgotten” rural America as the victim of globalization and automation that made traditional livelihoods obsolete, fueling social problems such as the opioid crisis. Professor Eisenberg uses distributive justice theories to question the morality of public measures that consistently decided to trade rural welfare for perceived societal benefit. Her Article concludes that an alternative approach must be taken, raising questions of what a fairer allocation of benefits and burdens should be.
In her Note, Meaghan Annett explores whether trademarks are commercial speech by looking at the Supreme Court’s 2017 decision in Matal v. Tam and its 2019 decision in Iancu v. Brunetti, which struck down clauses of the Lanham Act due to unconstitutional viewpoint discrimination. Both the Tam and Brunetti Courts declined to answer whether trademarks are commercial speech. By failing to answer this crucial question, the Court left open the issue of available limits on the government's restrictions on speech, or if there are even limits at all. Meaghan argues that the law should treat trademarks as commercial speech. She further concludes that the Central Hudson test for intermediate scrutiny is appropriate for identifying a compelling government interest related to trademark restrictions at issue. Otherwise, a strict scrutiny analysis of trademark jeopardizes a vast majority of the United States’ signature trademark act: the Lanham Act.
When Rubber Meets the Road: Balancing Innovation and Public Safety in the Regulation of Self-Driving Cars by Spencer Mathews
Spencer Mathews’ Note explores the current automotive regulatory regime and discusses how it applies to self-driving cars. After reviewing the scope of the National Highway Traffic Safety Administration’s regulatory authority, Spencer reviews proposals in Congress to adapt these regulatory powers to accommodate self-driving cars. Ultimately, Spencer concludes that the current regulatory regime, as well as proposals in Congress to modify it, is inadequate. Spencer argues that a type approval process, similar to the certification process the Federal Aviation Administration uses for aircraft, is a better regulatory scheme for balancing innovation and public safety in the development of self-driving cars.
Our Inner Demons: Prosecuting Domestic Terrorism by Michael Molstad
Michael Molstad’s Note considers the terrorism section of the United States’ criminal code and its disproportionate application to those with an Islamic ideology. Michael argues that the current code is inadequate to address the recent rise of right-wing terrorism and has been applied differently to individuals based on their ideology. Michael’s Note concludes by arguing that the United States should adopt a domestic terrorism statute that applies based on the actions of individuals, not based on their belief system or individual backgrounds.
Recalibrating the Scales: Balancing the Persecutor Bar by David Romanow
In his Note, David Romanow looks at both the intended and collateral consequences of the persecutor bar under U.S. immigration law, a statute that excludes from asylum eligibility those who have assisted or participated in the persecution of others. Whereas the persecutor bar was implemented to handle the influx of refugees fleeing Europe after WWII, its applicability to modern contexts is debatable. Recent case law suggests there may be exceptions to applying the persecutor bar to asylum applicants who were coerced into performing persecutory conduct. Arguing that these recent court opinions do not go far enough, however, David suggests that courts should employ a balancing test when determining whether to apply the persecutor bar. Specifically, David argues that courts should balance the persecution from which the applicant is fleeing against the gravity of the applicant’s conduct, the nature of the persecution in which the applicant assisted, and any other mitigating factors.