The June 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 eight pieces can be found below. The full texts are also available on the BCLR website.
The Movement to Decriminalize Border Crossing by Professor Ingrid V. Eagly
In her Article, Professor Eagly explores the growing resistance to the politics and practices of mass border criminalization. She dissects the punitive practices of the U.S. Department of Justice, including policies of zero-tolerance prosecution for first-time unauthorized border crossers and enhanced punishments for those who reenter after deportation. She then traces how growing public awareness of the previously hidden practices occurring in Border Patrol holding cells and federal criminal courts along the Southwest border have sparked new criticism of illegal entry and reentry laws. This Article analyzes the nascent movement to decriminalize border crossing by repealing Sections 1325 and 1326 of the immigration law that have punished unauthorized border crossing since 1929. Irregular entry would remain a civil violation of the immigration law and be handled by the civil deportation system. Professor Eagly argues that the call to decriminalize border crossing exposes the racialized harm imposed by current policing practices and inspires discussion of additional reforms that would make the civil side of immigration law more humane and equitable.
The New Regulatory Imperative for Insurance by Professor Rick Swedloff
Professor Swedloff’s Article addresses emerging gaps in consumer protection. Insurers are revolutionizing their practices with artificial intelligence and big data and finding new ways to price risks and policies, tailor coverage, offer advice to purchasers, identify fraud, and sequence the payment of claims. These changes have subverted consumer protections built into current regulatory regimes, and regulators are struggling to adapt. Deep information asymmetries make it difficult for consumers to evaluate the quality of policies and carriers, for insurers to price risks properly, and make it possible for both sides to act opportunistically. Most of the previous legal scholarship about algorithmic justice has been in the context of information platforms, criminal justice, and employment discrimination. Professor Swedloff connects to those discussions and expands them in the specific context of insurance. His Article provides a taxonomy of the changes in the insurance industry, the potential danger to consumers as a result of those changes, the reasons for regulation, and the ways that regulators must adapt to protect individual consumers and the insurance market.
(What We Talk About When We Talk About) Judicial Temperament by Professor Terry Maroney
Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. In her Article, Professor Maroney posits that, because judicial temperament is a psychological construct, we ought to draw upon psychology to understand it. She taps a deep well of scientific research to construct a new psycho-legal theory of judicial temperament. It conceives judicial temperament as a deep-seated, relatively stable set of specific personal traits—separable from intellect, training, and ideology—that, in dialectic with specific judicial environments and the predictable demands of judging, drive behaviors that affect how justice is delivered and perceived. The critical trait dimensions of a judge’s temperament are positive emotionality, negative emotionality, kindness, and self-regulation. Setting the theoretical terms for empirical testing of its claims—and with the potential to transform processes for judicial selection, evaluation, and support—the psycho-legal theory posited here shows what we should be talking about when we talk about judicial temperament.
In his Note, Dean Elwell explores the lucrative industry of litigant-funded evidence. He explains how epistemological differences between science and law have permitted tainted research to slip past state and federal judicial gatekeepers. After wading through a multidistrict jury trial involving ghostwritten articles and a corrupt federal official, Dean argues that courts should apply Frye v. United States and Daubert v. Merrell Dow Pharmaceuticals, Inc. more broadly to account for the risks of industry-influenced evidence. To facilitate this more sensitive review, Dean proposes amending Rule 26 of the Federal Rules of Civil Procedure to require mandatory disclosure of industry influence.
In his Note, Lucas Follett explores United States antitrust law and its application to the National Football League’s expansion policy. Under the current NFL Constitution and Bylaws, a vote of three-fourths of current NFL members is able to prevent the entry of any franchise into the NFL, which Lucas argues is effectively the entire market for professional football in the United States. In reviewing cases interpreting U.S. antitrust law and the NFL’s franchise expansion and relocation policies thereunder, Lucas argues that leaving the decision of whether to admit an expansion franchise to a vote of member teams is anticompetitive under the Sherman Act when applying a rule of reason analysis. He also discusses the theory of Parallel Exclusion as a useful analytical tool that would allow courts to consider the anticompetitive effect that challenged conduct has on consumers, and find a violation independent of whether the form of the conduct fits neatly within the bounds of §§ 1 or 2 of the Sherman Act.
Eric Sherman’s Note explores the nuances of the financing statement, one of the several innovations that Article 9 of the Uniform Commercial Code brought to law governing secured transactions. Just recently, the First and Seventh Circuits heard cases involving two of Article 9’s rules regarding the financing statement: the collateral indication requirement and the debtor name requirement. The courts, however, interpret Article 9’s collateral indication requirement differently when faced with a similar issue, and the First Circuit created a new standard with respect to the debtor name requirement involving a separate but novel issue. Eric argues that Article 9’s collateral indication requirement must not be construed to require third parties to search outside a secured lender's filings to determine what collateral may be subject to a security interest. Further, he argues that when a novel issue arises under Article 9, an interpretation that promotes one or more of the Code's stated purposes should be preferred.
Repaving Route 128: How New Legislation in Massachusetts Impacts the Noncompete Debate by Michael G. Feblowitz
Michael Feblowitz’s Note examines the Massachusetts Noncompetition Agreement Act, which was enacted in 2018 with the goal of limiting the enforcement of noncompetition agreements for departing employees. His Note revisits an oft-cited article in which one scholar identified Massachusetts’s high enforcement of noncompetes as the primary cause of the Route 128 business district’s relative downfall compared to Silicon Valley. He explores this comparison in light of the new legislation and scrutinizes the Massachusetts law in the context of the region’s history. Michael argues that the Massachusetts Noncompetition Agreement Act sets a useful example for states looking to rewrite their employee noncompete laws, but that it leaves several important issues unresolved.