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.

Court-Packing: An American Tradition? by Professor Joshua Braver

In this Article, Professor Braver provides the first comprehensive and conceptual account of all increases and decreases to the Supreme Court’s size. In today’s debate over court-packing, proponents assert and opponents concede that there is ample precedent for the tactic. Against this prevailing consensus, Professor Braver argues that, although the Court’s size has changed seven times, court-packing is nearly novel in American history, and it would pose unprecedented dangers if enacted today. The Article concludes by explaining why the elected branches have sought and how they have managed to curb the Supreme Court without permanently tainting the Court’s legitimacy. Professor Braver explains that, in an age of rising populism, the next step for scholars of constitutional hardball and departmentalism is to set outer boundaries for the attacks on the Court that they encourage.

The Hidden Value of Abandoned Applications to the Patent System by Professors Christopher A. Cotropia & David L. Schwartz

Some inventors abandon their patent applications without ever receiving a patent. Although patent scholars view such abandoned applications as essentially worthless, Professors Cotropia and Schwartz question that conventional wisdom. In conducting an empirical analysis of a recently released patent application dataset (in light of a 1999 change requiring publication of most abandoned applications), Professors Cotropia and Schwartz find that the United States Patent and Trademark Office often uses abandoned applications as prior art when examining future patent applications. Abandoned applications, they conclude, thus generate an administrative disclosure that prevents the issuance of broader patent rights to later applicants. This Article shows that, by narrowing the scope of new patents, abandoned applications perform a public service in limiting exclusivity over any given technological space and opening up more invention space to the public domain, but they do so at an enormous private cost to the abandonee—benefits and costs that have yet to be fully accounted for in the literature.

Cooperative Federalism and SIJS by Professor Shani M. King and Ms. Nicole Silvestri Hall

In this Article, Professor King and Ms. Hall examine the structure of the Special Immigrant Juvenile Status (SIJS) statutory scheme and the roles of state and federal actors contemplated therein. They review relevant principles of federalism, plenary powers, and the exceptional treatment of immigration laws within the federalism framework. Using these principles, they then consider the responses of states that have sought to broaden or restrict access to SIJS. Finally, they consider the potential for a cooperative model of federalism to help resolve tensions and correct misunderstandings surrounding the SIJS statute. It is just such a pragmatic approach, which accepts the interactive and interdependent relationships between the federal government and the states, that allows us to best make sense of the SIJS statute. Professor King and Ms. Hall suggest that this approach can accommodate the SIJS statute as a legal hybrid that addresses the issues of immigration where they lie: both at the external federal borders and within those borders in the several states.

Mere Common Ownership and the Antitrust Laws by Professor Thomas A. Lambert

“Common ownership,” also called “horizontal shareholding,” refers to a stock investor’s ownership of minority stakes in multiple competing firms. In this Article, Professor Lambert considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market competition may violate both Section 7 of the Clayton Act and Section 1 of the Sherman Act. Professor Lambert, however, argues that competition-lessening instances of mere common ownership do not violate Section 7 of the Clayton Act because they fall within its “solely-for-investment” provision. Mere common ownership does not run afoul of Section 1 of the Sherman Act because it lacks the sort of agreement (contract, combination, or conspiracy) required for liability under that provision. From a social welfare standpoint, these legal outcomes are desirable. Condemning mere common ownership under the antitrust laws would likely entail significant costs, and the benefits such condemnation would secure are speculative. Accordingly, Professor Lambert argues that courts and enforcers should not stretch the antitrust laws to condemn mere common ownership.

Cruel and Unusual: Why the Eighth Amendment Bans Charging Juveniles with Felony Murder by Cameron Casey

Cameron Casey’s Note explores the intersection of Supreme Court jurisprudence on the Eighth Amendment, felony murder, and juvenile justice, and argues that it is unconstitutional to charge juveniles who did not kill, attempt to kill, or intend to kill with felony murder—a doctrine that allows individuals who unintentionally kill while committing a felony to be charged with murder. The Supreme Court has acknowledged that juveniles are different from adults because they lack maturity and the ability to understand the consequences of their actions. The felony murder doctrine hinges on a defendant’s anticipation of what might occur when carrying out a felony; thus, it cannot be applied to juveniles who did not kill, attempt to kill, or intend to kill because juveniles, unlike adults, lack the capacity to anticipate negative results from their actions. For example, when juveniles burglarize a home, they may not be able to anticipate that the situation could escalate and result in the physical harm, or even death, of the homeowner. This Note will argue that it is unconstitutional to charge juveniles who did not kill, attempt to kill, or intend to kill with felony murder because the Eighth Amendment’s Cruel and Unusual Punishments Clause requires defendants to be morally culpable in order to face criminal liability. Juveniles who did not kill, intend to kill, or attempt to kill lack the requisite moral culpability to be charged with felony murder.

God’s (Pension) Plan: ERISA Church Litigation in the Aftermath of Advocate Health Care Network v. Stapleton by Rebecca Miller

The Employee Retirement Income Security Act of 1974 (ERISA) protects the pensions of American workers by placing vesting, funding, and fiduciary obligations on plan sponsors. “Church plans” established and maintained by church organizations, however, are exempt from the provisions of ERISA to avoid entanglement between church and state. Rebecca Miller’s Note traces the history of the church plan exemption before and after the 2017 U.S. Supreme Court decision in Advocate Health Care Network v. Stapleton, in which the Court adopted a broad interpretation of what constitutes a church plan. Since this decision, federal courts have largely refused claims brought by litigants who are members of church plans maintained by church-affiliated organizations. Many of these litigants have pursued alternative recourse, including settling out of court or seeking damages in state court. Rebecca’s Note illustrates the limited options left for participants in and beneficiaries of church plans after the Stapleton decision, and it examines several recent church plan cases to assess the strengths and weaknesses of various post-Stapleton strategies. Rebecca’s Note concludes with a call for reform of the ERISA church plan exemption and argues that, in the meantime, states can and should introduce legislation to regulate church plans.  

Treating OSHA Violations as Negligence Per Se by Rory Skowron

Rory Skowron explores the current law regarding whether a defendant's violation of OSHA standards may be considered negligence per se. After discussing the historical development of the familiar tort doctrine, as well as the nature of OSHA and the standards it promulgates, Rory presents a comprehensive survey of the various ways state and federal courts treat violations of OSHA standards in tort actions. Rory ultimately argues that, despite the reservations of many courts, there is nothing improper about treating OSHA violations as negligence per se. Courts have the discretion to derive the applicable standard of care from federal administrative rules, such as OSHA standards, as they see fit. 

The Forfeiture Forecast After Timbs: Cloudy with a Chance of Offender Ability to Pay by Rachel Weiss

Rachel Weiss’s Note examines the impact of the Supreme Court’s decision in Timbs v. Indiana, in which the Court extended the Eighth Amendment’s Excessive Fines Clause to states, thereby arming litigants with a seemingly powerful constitutional protection against civil asset forfeiture. In Timbs, the Court implicitly endorsed a gross disproportionality standard for assessing forfeitures, while chronicling the long-established practice of considering an offender’s ability to pay when imposing fines. In practice, however, these two metrics conflict with one another. In her Note, Rachel argues that by affording state courts the option to consider an offender’s financial capability, without outlining a concrete test for how to do so, the Court only has exacerbated the existing widespread divergence among lower courts. She further asserts that the Supreme Court missed a critical opportunity to right the sinking ship of civil forfeiture, by failing to anchor its analysis squarely within the Eighth Amendment framework and leaving unchecked the significant power of this prosecutorial tool. Consequently, this Note concludes that renewed doctrinal confusion is likely to emerge from Timbs and suggests that now is an optimal time for litigants to challenge civil forfeiture actions. Through precise legal actions, Rachel argues that individuals finally may compel the Court to adopt a clear and holistic Excessive Fines Clause analysis, in which an offender’s ability to pay is rightfully recognized.