The October 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.
Why Financial Regulation Keeps Falling Short by Professors Dan Awrey and Kathryn Judge
There is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, Professors Awrey and Judge examine how this mismatch undermines financial stability and other policy aims. Their examination further reveals that the procedural checks on lawmaking meant to promote accountability and legitimacy often fail to further either end. They result instead in excessive expenditures before new rules are adopted, counterproductive efforts to perfect ever more detailed rules, and too little re-evaluation of existing rules in light of new information or changed circumstances. The mismatch between the nature of finance and how finance is regulated helps to explain why financial regulation has failed in the past and why it will likely fail again. It also suggests the need for a new approach to financial regulation, one that acknowledges the limits of what can be known given the realities of today’s complex and constantly evolving financial ecosystem.
Conceptualizing Hybrid Rights by Professor Dan Coenen
In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so-called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. In his Article, Professor Coenen explores the controversy surrounding hybrid rights and argues that both their proponents and opponents have taken wrong turns in their efforts to identify and assess their source. Thus, Professor Coenen examines how hybrid rights are just like other rights in the key sense that each such right emanates from a single constitutional clause. His Article develops and defends a previously unrecognized single-text-viewed-in-light-of-the-whole-document theory of hybrid rights that undercuts key challenges to their recognition, including that these rights are (1) non-originalist, (2) unduly activist, (3) unmanageable, and (4) counter-textual. Even more important, he suggests, is that his new synthesis reveals why there is error—error perhaps attributable to the very nomenclature of “hybrid rights”—in assuming that these rights must reflect judicial usurpation because they seem, at first blush, to be exotic in nature. Hybrid rights, Professor Coenen argues, are not exotic at all, but simply rights just like other rights, rooted in a single constitutional provision, whose ambiguity courts address by consulting the whole document that is the Constitution itself.
The Corporation Reborn: From Shareholder Primacy to Shared Governance by Professors Grant M. Hayden and Matthew T. Bodie
The consensus around shareholder primacy is crumbling. The arguments for a core feature of the modern corporation—the exclusive shareholder franchise—have been revealed as the product of flawed assumptions, misapplied social choice theory, and a failure to hold true to the fundamental precepts of standard economics. It is time to look at such governance features anew, and reorient the literature around the basic purpose of corporations: to provide a legal mechanism for business firms to engage in the process of joint production. In their Article, Professors Hayden and Bodie present a new shared governance model, one that builds on the longstanding theory of the firm as well as a novel theory of democratic participation. These twin arguments, economic and political, both counsel in favor of extending the corporate franchise to employees as well as shareholders, and, importantly, provide a way to distinguish these two constituencies from other corporate stakeholders when it comes to governance rights. Their Article concludes by assessing the current status of a shared governance system in Germany and advocating for further theoretical and empirical inquiry into shared governance structures that provide for joint shareholder and employee participation.
Startup Partnerships by Professor Christine Hurt
Everyday, individuals do business with one another on a handshake basis. Promising entrepreneurs may neglect to form a business entity at the onset while focused on the creation of a product or service. Professor Hurt finds that, even after founders have expended time, energy, and capital during this pre-incorporation phase, there is still a risk that their co-founders could deprive them of an ownership stake in the business. In her Article, she argues that the default partnership doctrine provides a useful avenue of redress in these situations. She contends that, far from being obsolete, the doctrine creates essential rights and obligations between parties before incorporation. The Article addresses recent cases of startups where partnership principles had, or could have had, significant implications, including nFacebook, Inc., Snap, Inc., and Urban Decay. Professor Hurt shows that, compared to the default partnership doctrine, alternative legal theories are poorly suited to further innovation, collaboration, and entrepreneurship. The Article concludes by providing advice to help parties avoid any unwanted outcomes arising from being in a default partnership.
Despite the recent passage of federal legislation requiring free access to menstrual health products in federal prisons, hundreds of thousands of women in state and local prisons continue to have inadequate access to these products. Not only do most prisons provide subpar menstrual health products in terms of quality, prisons often do not provide enough of these products to allow for individuals to change their pads and tampons at the doctor-recommended frequency. In his Note, Mitch Carney argues that current restrictive practices violate the Equal Protection Clause of the Fourteenth Amendment, as well as the Eighth Amendment’s prohibition against cruel and unusual punishments. Regarding the Equal Protection Clause, Mitch argues that differential treatment on the basis of menstruation must be considered a form of sex discrimination. After outlining the various standards of review that courts use for evaluating claims of sex discrimination in prison, he concludes that current restrictive practices do not further valid penological interests and thus cannot satisfy even the most lenient standard of review. Turning to the Eighth Amendment, Mitch argues that current practices are unconstitutional because they expose inmates to an unreasonable risk of future harm by inhibiting inmates from practicing necessary menstrual hygiene, despite institutional knowledge of the risks. Mitch’s Note emphasizes the importance of judicial action on this issue to protect the health and wellbeing of all prisoners regardless of sex.
Caitlin Durand’s Note examines the impact that the increase in Catholic hospital mergers has on access to reproductive health care in the United States. Over the past two decades, the number of Catholic health care systems has steadily expanded throughout the United States as a result of mergers between Catholic and non-Catholic hospitals. Catholic health care systems must abide by the Ethical and Religious Directives for Catholic Health Care Services, which prohibit many common reproductive health care procedures, such as medically-necessary abortions and in-vitro fertilization. While reproductive health care advocates have succeeded in developing innovative structural remedies to limit the decrease in reproductive health care services in communities affected by a Catholic hospital merger, Caitlin’s Note argues that the 2018 revision to the Directives threatens these solutions. Caitlin’s Note further proposes that antitrust law may be an effective method to regulate the anticompetitive effects of Catholic hospital mergers in the provision of reproductive health care.
Max Fabiszewski’s Note explores how today’s self-incrimination doctrine fails to protect juveniles in shocking ways. Tracing this “amphibious” doctrine to its current, splintered state, Max explores how the law has failed to establish meaningful protections to ensure that juveniles can understand and use their right against self-incrimination. He discusses the severe disconnect between the important lessons the social sciences teach about minors and legal standards that do not meaningfully account for that knowledge. Max shows the scope of this issue by exploring all increased protections beyond and parallels to federal law in all states—the most extensive (and up-to-date) survey in the literature. In his Note and this survey, Max uses Brendan Dassey’s conviction as a case study to show that attempted increased protections are largely ineffectual and do not go far enough. As a result, this Note highlights how false confessions unduly prejudice children in the criminal justice system and result in wrongful convictions. Consequently, this Note concludes that major change is necessary to protect juveniles from self-incrimination, and it suggests that making confession evidence from juvenile interrogation inadmissible in court for due process and evidentiary reasons is sensible.
Anne Hart’s Note capitalizes on her experience as an Olympic athlete to examine the bylaws of the United States Olympic and Paralympic Committee (USOPC) and its incorporating statute, the Ted Stevens Olympic and Amateur Sports Act (The Ted Stevens Act). The Ted Stevens Act grants the USOPC exclusive jurisdiction to control United States representation at the Olympic and Paralympic games and empowers the USOPC to establish and oversee National Governing Bodies (NGBs), which in turn control individual athletes within each sport. Despite this sweeping scope, there has to date been little accountability for the USOPC Board of Directors (USOPC Board), which Anne argues owes fiduciary duties to the United States, NGBs, and all amateur athletes. Anne’s Note examines three recent decisions of the USOPC Board through a fiduciary duty lens: (1) amending its Bylaws to replace the American Arbitration Association with an arbitral organization of its choosing; (2) altering its mission statement to narrow the definition of athletes it considers itself responsible for; and (3) dispersing grants to NGBs based on a “results oriented resource allocation process.” Anne concludes not only that these actions by the USOPC Board represent breaches of its fiduciary duties to the United States, NGBs, and amateur athletes, but also that the U.S. Attorney General should enforce these duties and swiftly move to hold the USOPC Board accountable.