The May 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.
In addition, BCLR would like to recognize the Electronic Supplement team for its outstanding work this year and for its recent publication of a seven-part symposium on Anita Bernstein’s The Common Law Inside the Female Body. More details about the Symposium can be found below. The full texts—including essays, student Comments, and Symposium Articles—are available on the Electronic Supplement website.
Double Standards: An Empirical Study of Patent and Trademark Discipline by Professor Jon J. Lee
Through innovative empirical methods marshalling data over sixteen years from disciplinary authorities throughout the country, Professor Lee exposes some significant defects in the U.S. Patent and Trademark Office’s (USPTO) disciplinary system. The USPTO’s need to regulate the conduct of trademark attorneys and patent practitioners is largely due to the critical role these professionals play in the provision of intellectual property rights. Professor Lee argues, however, that this disciplinary system is little more than window dressing if the USPTO does not leverage its authority to ensure those it regulates conform their conduct to the profession’s ethical standards. The Article reveals that the USPTO is not only failing to discipline bad actors with regularity, but also overlooking the types of misconduct that threaten to undercut intellectual property rights. Professor Lee concludes by offering three recommendations to help leverage the threat of practitioner discipline to promote more ethical conduct before the USPTO.
Privacy’s Constitutional Moment and the Limits of Data Protection by Professors Woodrow Hartzog & Neil Richards
In their Article, Professors Hartzog and Richards discuss the need for a comprehensive approach to data privacy. The European Union’s General Data Protection Regulation, the California Consumer Privacy Act, and Congress’s failure to build a robust identity for American privacy law have created the space and necessity to rethink U.S. data privacy. The Article illustrates that the United States is in the midst of a “constitutional moment” for privacy, in which intense public deliberation and action may bring about constitutive and structural change. Professors Hartzog and Richards highlight the risks of U.S. lawmakers embracing a watered-down version of the European model as American privacy law enters its constitutional moment. They conclude that in the United States, a data protection model cannot do it all for privacy and, instead, propose a “comprehensive approach” to privacy that is better focused on power asymmetries, corporate structures, and a broader vision of human well-being.
Schrödinger’s Corporation: The Paradox of Religious Sincerity in Heterogeneous Corporations by Professor Catherine A. Hardee
In her Article, Professor Hardee discusses corporations and religious accommodations. A corporation is potentially both religiously sincere and insincere at the same time where one group of shareholders holds sincere religious beliefs and another group of shareholders, for a price, allows the religious shareholders to request a religious exemption on behalf of the corporation. Professor Hardee proposes an attribution inquiry that is informed by state corporate law and theories of religious sincerity. She notes the deficiencies of state corporate law regarding control to solve this problem and warns that allowing control to stand in for attribution would lead to the monetization of religious sincerity—harming third parties and diminishing the value of religious liberty both in the courts and in the public eye. Professor Hardee concludes by suggesting that meaningful restrictions should be placed on the ability of shareholders with heterogeneous religious beliefs to contract among themselves for corporate religious sincerity.
Sovereign Debt Crises and Vulture Hedge Funds: Issues and Policy Solutions by Daniel J. Brutti
Daniel Brutti’s Note presents a novel solution to market failure in the sovereign debt restructuring context. As the combination of record government indebtedness and global coronavirus-induced recession elevates sovereign default risk, “vulture” hedge funds will begin to circle overhead. Vultures’ aggressive tactics can exacerbate the deleterious economic effects of default episodes and result in massive wealth transfers from impoverished nations to sophisticated western investors. Still, these funds provide the liquidity and informational signals indispensable to a functioning secondary market. Sadly, however, the international community has failed to produce a viable, effective policy solution that simultaneously curbs vultures’ excesses while preserving the real benefits they provide. After reviewing the history and causes of sovereign default, distressed debt investing generally, and the inadequacy of the various policy solutions proposed to date, Daniel argues in favor of nonprofit intervention in the distressed sovereign debt market.
In her Note, Hannah Cohen discusses the treatment of asylum claims based on domestic violence. She explores the fraught history of these claims as well as a 2018 case decided by former Attorney General Jeff Sessions, Matter of A-B-, that attempts to heighten the standard for asylum involving persecution by non-state actors. Through this immigration lens, she also examines the deference that federal courts afford to decisions made by federal agencies. She proposes that the outcome of Matter of A-B- is inconsistent with the statutory framework for asylum and thus federal courts are not obligated to defer to it. She also argues that the current agency deference regime raises concerns about separation of powers and thus should be reexamined and reformed to curb abuse by federal agencies.
In Eric Schmid’s Note, he addresses conflicting regulations from the Food & Drug Administration and Securities Exchange Commission that obfuscate disclosure decisions for dually regulated companies. Accordingly, life science companies face an increased risk of securities litigation for failing to adequately disclose material information related to extensive regulation of their products. Eric draws two possible conclusions: that life science companies are either intentionally defrauding investors or recklessly omitting disclosures due to the FDA’s complex and ambiguous regulatory decisions. He subsequently argues that the FDA must clarify good disclosure practices to reduce instances of reckless fraud before more drastic measures are taken that may stymie medical innovation.
“Terms of Heart”: Judicial Style in Obergefell v. Hodges by Eliza S. Walker
Eliza Walker’s Note explores the writing style of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges. After Obergefell was released, its final paragraph went viral on social media followed by the hashtag #lovewins. Despite its resonance with the public, many across the political spectrum criticized the opinion’s supposedly non-legal style. Eliza’s Note explores this tension by first tracing the evolution of U.S. Supreme Court opinion style throughout history. Eliza then discusses the Law and Literature movement and argues that it is an appropriate lens through which to analyze the style of Obergefell because of its focus on the audience of an opinion. Eliza argues that Obergefell exemplifies the Law and Literature ideal because it uses language to generate empathy and build community.
Seven female law professors, including Anita Bernstein herself, come together to engage with and respond to Bernstein’s book, The Common Law Inside the Female Body. Bernstein’s book challenges the notion that the common law undermines women’s rights, arguing instead that the common law—through its use of negative liberties—protects women’s rights, including the right to an abortion. Bridget J. Crawford’s piece introduces the symposium and the other six pieces in the series. Crawford’s piece is followed, in order, by pieces from Nadia B. Ahmad, Ann Bartow, Deborah Dinner, Lolita B. Inniss, and Katharine Silbaugh, all of whom are professors at law schools across the country.
Each author reflects on Bernstein’s book and contributes their own ideas, drawing from modern-day events and their experience as law professors. As Crawford states in her introduction, “[g]rounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these essays—together with Professor Bernstein’s book—suggest that the common law has been underutilized as a legal strategy to protect women’s rights.” Bernstein’s article completes the symposium, by responding to each of the other pieces in turn and providing thoughts on the other authors’ perspectives.