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.
Beyond Algorithms: Toward a Normative Theory of Automated Regulation by Professor Felix Mormann
For more than a century, policy-makers have relied on regulations that automatically adjust to changing circumstances, without the need for human intervention. Professor Mormann’s Article surveys the track record of self-adjusting governance mechanisms to propose a normative theory of automated regulation. Effective policy-making frequently requires anticipation of future developments, from technology innovation to geopolitical change. Self-adjusting regulation offers an insurance policy against the well-documented inaccuracies of even the most expert forecasts, reducing the need for costly and time-consuming administrative proceedings. Today’s automated regulations rely on relatively simplistic algebra, a far cry from the multivariate calculus behind smart algorithms. Harnessing the advanced mathematics and greater predictive powers of artificial intelligence could provide a significant upgrade for the next generation of automated regulation. Any gains in mathematical sophistication, however, will likely come at a cost if the widespread scholarly skepticism toward algorithmic governance is any indication of future backlash and litigation. Professor Mormann concludes by encouraging policy-makers to consider carefully whether their objectives may be served as well, if not better, through more simplistic, but well-established methods of regulatory automation.
Uncertainty > Risk: Lessons for Legal Thought from the Insurance Market by Professor Tom Baker
Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. Professor Baker’s Article criticizes that conception as a restrictive vision of liability-based regulation because uncertainty poses an existential threat to insurance markets that are understood to require insurance to meet this ideal type. The Article describes an emerging secondary insurance market—the insurance runoff market—that transfers liabilities under insurance policies issued many years in the past. Runoff specialists reprice these legacy insurance liabilities with hindsight, consolidate them, and take calculated risks that encourage capital to enter the runoff market. That market transforms the uncertainties of yesterday into today’s tradable risks, bringing into the open a dynamic that pervades insurance markets: namely, the promises that are made in all insurance policies get bundled and reconceptualized into sets of liabilities that are valued and revalued, further combined, and redefined over time. Professor Bork shows that, through the lens of the runoff market, we can see many ways that insurance organizations manage uncertainty, revealing the resilience in insurance markets and the flexibility and innovation that produce that resilience.
Leverage by Professor Randy J. Kozel
Sometimes government operates by inducement rather than order. Congress distributes money to the states. A state grants funds to nonprofit organizations. An administrative agency offers wages and professional opportunities to its staff. A high school provides instruction to its students. In each situation, the government furnishes something of value. And in each situation, it asks something in return—whether implementation of a government program, forbearance from activities deemed inconsistent with operational goals, conduct in pursuit of an employment mission, or compliance with standards of academic discipline. As Professor Kozel explains in his Article, though they arise in different contexts, these varied forms of government action present the same core question of constitutional justification. The issue in each case is the extent of the government’s power to bargain for what it does not, will not, or cannot demand. This Article, therefore, explores the limits on what governments may buy by providing a theory for this concept of leverage: the government’s exploitation of a public asset to influence unrelated behavior.
Governing Nature: Bambi Law in a Wall-E World by Professor Karrigan Bork
Humanity has disrupted many of the fundamental processes that shape nature worldwide. Many ecosystems no longer support native species or traditional human uses. In the Anthropocene, a new geologic era dominated by the human impact on Earth, these problems will continue to get worse. Professor Bork’s Article argues that, even as humanity engages in an unprecedented level of ecosystem management, existing environmental governance structures are ill suited to manage this new nature. This Article considers three case studies of managed ecosystems, detailing the extent to which humans are controlling nature. The case studies suggest that the existing literature seriously underestimates the magnitude of the questions society will soon face. Professor Bork concludes that although we face the daunting prospect of reshaping the very fabric of nature, we lack the governance structures to decide what shape it should take. Society will need environmental law governance that can answer fundamental questions about humanity’s role in managing nature at all scales. This Article proposes several starting principles to encourage legal scholars to address this need.
Suicide in the Evidentiary Spotlight: An Analysis of the Trustworthiness of Suicide Notes Under the Federal Residual Exception by Jana Haikal
Jana Haikal’s Note explores the intersection of suicide notes and the federal residual exception, an exception to the evidentiary rule against hearsay. Although rare, suicide notes are sometimes offered into evidence under the residual exception. A court must then decide whether a suicide note is admissible under this exception. In 2019, changes to the federal residual exception went into effect. To be admissible under the new standard, a hearsay statement must be trustworthy and possess probative value. Additionally, the offering party must give notice to the opposing party of its intention to offer the statement into evidence before or during a trial hearing. There is currently no case law analyzing the admissibility of a suicide note under this exception since the 2019 amendment. Precedent indicates that most courts conduct only a cursory analysis before deeming a suicide note to be inadmissible for lacking sufficient guarantees of trustworthiness, the first requirement of the residual exception. The judges in these courts, however, fail to consider psychological research and additional case law, wherein courts in detail review the trustworthiness of suicide notes under the dying declaration exception. These both offer beneficial insight about suicide notes and their trustworthiness. The precedent of cursory analysis is problematic because suicide notes have the potential to influence the outcome of criminal cases, exculpating or inculpating defendants. This Note argues for meaningful admissibility analyses via a three-part balancing test that incorporates psychological research and case law to assess more accurately the trustworthiness of a suicide note under the residual exception.
Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach by Maria Massimo
Several foundational international human rights instruments, including the Universal Declaration of Human Rights, contain a right to adequate housing, though this right does not exist in the United States. Maria Massimo’s Note examines how the nation’s treatment of international treaties has contributed to the lack of a right to housing and an ensuing affordable housing crisis, as well as the current state of housing rights in the United States. After discussing the treatment of housing as a human and constitutional right in domestic states and foreign nations, Maria argues that the United States must treat housing as a right, so it may begin to mitigate the worsening affordable housing crisis. Subsequently, this Note contends that individual states should recognize a right to housing in their respective state constitutions to create an obligation that state governments ensure adequate housing for their residents. To experience the greatest probability of success, this new right must also be justiciable and enforceable by domestic courts. Maria ultimately argues that, using foreign nations that recognize a right to housing and existing principles of international human rights law as models, states that adopt a right to housing will be able to individually lessen the affordable housing crisis and better safeguard human rights on the domestic front.
Consider the Caregivers: Reimagining Labor and Immigration Law to Benefit Home Care Workers and Their Clients by Abigail Rosenfeld
Abigail Rosenfeld’s Note examines how federal labor and immigration laws harm home care workers, and thereby recommends reforms to reduce exploitation in the industry. After examining the origins of professional caregiving and underscoring the rising demand for long-term care in the United States, Abigail’s Note demonstrates that home care workers are particularly susceptible to abuse. Inadequate labor law enforcement impedes home care workers from exercising their rights. Moreover, deficient visa programs and the criminalization of undocumented employment adversely affect home care workers. Abigail’s Note concludes by calling on Congress to implement policy reforms to aid home care workers. These proposed changes include bolstering strategic enforcement of federal wage and hour laws, offering amnesty to undocumented workers, and adjusting the immigrant employment-based visa program to benefit essential workers.
Kissing the Security Blanket Goodbye: How the SECURE Act Will Affect IRA Beneficiaries’ Long-Term Financial Security by Cassidy Seamon
The Setting Every Community Up for Retirement Enhancement (SECURE) Act implemented many new provisions to better help Americans prepare for retirement. One provision of the SECURE Act removed the stretch payout option for non-spousal beneficiaries of inherited individual retirement arrangements (IRAs). Now, non-spousal beneficiaries must completely distribute and pay taxes on the inherited IRA within ten years. Cassidy Seamon’s Note analyzes the SECURE Act’s impact on inherited IRAs for non-spousal beneficiaries. The removal of the stretch payout was meant to produce tax revenue that would help to pay for the other provisions of the Act. Cassidy argues that Congress opted for the short-term tax revenue that is expected from the IRAs of the Baby Boomer generation rather than the long-term security for multiple generations that the stretch payout allowed.