The March 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 seven pieces can be found below. The full texts are also available on the BCLR website.
The Elusive Zone of Twilight by Professors Michael Coenen and Scott M. Sullivan
In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a “tripartite” framework for evaluating exercises of presidential power. Regarding the middle category of that framework, Justice Jackson famously suggested that presidential actions undertaken “in absence of either a congressional grant or denial of authority” implicate “a zone of twilight,” within which “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Since the articulation of this idea some seventy years ago, the Supreme Court has furnished little additional guidance as to how courts should evaluate presidential actions that implicate the “zone of twilight,” thus leaving it largely to the lower courts to translate Justice Jackson’s “contemporary imponderables” into workable doctrinal commands. Taking that observation as its starting point, Professors Coenen and Sullivan canvass the small but important body of lower court opinions that have grappled with Justice Jackson’s zone of twilight. They suggest this yields two important takeaways. First, that these opinions reveal a varied, ad hoc, and sometimes-inconsistent set of approaches to reviewing twilight-zone actions, as lower courts have failed to converge on a single methodological approach to evaluating presidential action against a backdrop of formal legislative silence. And second, that the opinions reflect a longstanding and steadfast reluctance to engage with the twilight zone’s substance, as lower courts have frequently found ways to avoid concluding that plausible instances of twilight-zone action give rise to the “contemporary imponderables” that Justice Jackson himself invoked. Professors Coenen and Sullivan hypothesize that these two features of contemporary twilight-zone opinions—their doctrinal haphazardness and their sporadic incidence—may exist in something of a positive feedback loop, with the uncertain and amorphous state of “twilight-zone doctrine” deterring lower courts from assigning presidential action to Justice Jackson’s middle category, and with the relative paucity of twilight-zone opinions impeding the development of a coherent and streamlined decisional methodology. Thus, they conclude by proposing a simple but flexible method of two-dimensional twilight-zone analysis—an approach that might help to break this cycle of avoidance and amorphousness and thus render Justice Jackson’s zone of twilight a more useful and active venue for the resolution of separation-of-powers cases.
A Corporate Law Rationale for Reparations by Professors Susan S. Kuo and Benjamin Means
Should the United States pay reparations to African Americans? A majority of Americans object, arguing that they are not personally responsible for slavery or Jim Crow laws. Their objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions. This Article contends that the ethical-individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. Professors Kuo and Means argue that like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of its citizens any more than prosecuting a corporation turns on the guilt of its shareholders. Professors Kuo and Means further contends that corporate law contains resources for evaluating reparations on the merits. In particular, although this Article assumes that legal claims against the United States are not justiciable, it uses the Department of Justice’s Corporate Charging Guidelines to develop a moral case for paying reparations.
Corporate and Securities Law Impact on Social Responsibility and Corporate Purpose by Professor Thomas Lee Hazen
The role of social responsibility in corporate governance has been the subject of debate for nearly ninety years. That debate has been reframed over the decades. Several recent events have resulted in increased focus on corporate social responsibility, especially with respect to publicly held corporations. Professor Hazen’s Article explores the law’s two different paths for impacting social responsibility. The current iteration of the corporate responsibility movement has implications for both state law chartering of corporations and federal securities regulation. Professor Hazen analyzes the ways in which stated purpose clauses in a corporation’s articles of incorporation may be useful in addressing social responsibility and other corporate mission issues. This includes a brief discussion of benefit corporation statutes, followed by a discussion of how better use of stated purpose clauses may be a meaningful proxy for opting into benefit corporation statutes. Professor Hazen’s Article also traces developments in the securities laws’ approach to corporate social responsibility, including recommending the adoption of a safe harbor rule to encourage corporations to make disclosures relating to social responsibility.
Sovereigns, Freemen, and Desperate Souls: Towards a Rigorous Understanding of Pseudolitigation Tactics in United States Courts by Sam Barrows
Sam Barrows’s Note explores the startlingly common phenomenon of “pseudolaw”: pro se litigants who develop, share, and use frivolous and conspiratorial tactics in court. Pseudolitigants waste judicial time and use the legal system to harass their perceived enemies. Worse, they spread their theories to unsophisticated but well-meaning people who may simply be seeking an expedient solution to their legal dilemmas. Courts have traditionally dealt with pseudolitigants the same as any other pro se litigant, but this Note argues that they are better understood as a social movement with identifiable goals and techniques. Sam argues that pseudolaw is more than a nuisance: it degrades adherents’ ability to engage with the legal system and encourages criminal behavior. He proposes that courts develop systems to identify pseudolitigants so that their frivolous legal filings can be addressed early. Because maintaining pro se access to justice is important, he argues that courts must make an effort to distinguish pseudolitigants from ordinary pro se litigants. He therefore provides an explanation of pseudolitigant beliefs and a taxonomy of common indicia in pseudolegal filings in order to help courts separate the earnest but misguided from those operating in bad faith.
Climate Torts: It’s a Conspiracy! by Joseph Manning
At some point in the future, a State Attorney General will wake up after a natural disaster, like the Texas deep freeze and resulting power crisis this past February, and realize their state faces hundreds of billions of dollars in climate change adaptation and mitigation costs. Additionally, she’ll recognize that one of the primary reasons her state is inadequately prepared to address climate change is because political leaders have parroted climate denialism promoted by the fossil fuel industry and its allies. So what should this theoretical AG do? Should she pursue the strategy of suing fossil fuel companies under public nuisance law, even though it remains uncertain whether the Clean Air Act preempts such suits? Or should she forge a new path? In this Note, Joseph Manning argues that plaintiffs seeking to hold fossil fuel companies accountable for climate change should consider bringing causes of action for civil conspiracy and fraud. Joseph explores the history of fossil fuel industry-funded climate denialism, state and municipal climate lawsuits, and the common-law tort of civil conspiracy. By combining civil conspiracy with fraudulent misrepresentation and fraudulent concealment, Joseph concludes plaintiffs can require companies to pay for what has consistently delayed climate action: disinformation about the nature and causes of climate change.
“A Waiver of the Trial Itself”: The Constitutional Threats of Extending United States v. Mezzanatto and Contractual Solutions by Cherylann Pasha
Prosecutors and criminal defendants resolve most cases through plea agreements. Often these agreements contain waivers of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, which prevent the admission of statements made during plea discussions into evidence at a criminal trial. In 1995, the U.S. Supreme Court in United States v. Mezzanatto held that such waivers are enforceable for impeachment purposes. Numerous U.S. Circuit Courts of Appeals have extended this holding by permitting the use of these statements for the prosecution’s rebuttal and case-in-chief. Cherylann Pasha’s Note asserts that the extension of Mezzanatto threatens the constitutional rights of criminal defendants and violates prosecutorial ethics. Cherylann suggests that courts apply contract law principles to render waiver clauses unenforceable for rebuttal purposes and for the prosecution’s case-in-chief because they are contrary to public policy.
“You Just Need to Do It!”: When Texts Encouraging Suicide Do Not Warrant Free Speech Protection by Courtney Ruggeri
The First Amendment to the U.S. Constitution guarantees freedom of speech. When Michelle Carter was convicted of involuntary manslaughter after encouraging her boyfriend, Conrad Roy, to commit suicide over text message, many argued her conviction was unconstitutional. Nearly five years later, Massachusetts again finds itself dealing with a strikingly similar situation in which another teen, Inyoung You, has been charged with involuntary manslaughter for encouraging her boyfriend, Alexander Urtula, to take his own life through calls and texts. Courtney Ruggeri’s Note examines the implications of these two cases in the First Amendment context and ultimately argues that holding individuals criminally culpable for suicide-enouraging texts can pass constitutional muster. Although the Massachusetts Supreme Judicial Court’s reasoning in Carter may be questioned, various First Amendment carve outs and exceptions provide viable pathways for criminalizing this type of speech.