The February issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as three student notes. Summaries of the six pieces can be found below. The full texts are also available on the BCLR website.
Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty By Justin Collings and Stephanie Hall Barclay
Last term, in the course of oral argument for Fulton v. Philadelphia, five Supreme Court Justices entertained a reexamination of the Court’s First Amendment test assessing proper government justification for restricting religious liberty. In an era when religious rights often intersect with public health policy and social policy, increasing government involvement with religious exercise poses a prescient constitutional question. The pertinent question, raised by Justice Barrett in Fulton, is: If the Supreme Court replaces the current test, what should they replace it with? Professors Barclay and Collings attack this question head on and explore two possibilities: the proportionality framework and the strict scrutiny framework. The former is a common analytical tool in international courts, the latter more familiar in American jurisprudence. Each has their pros and cons, which this Article thoroughly describes. Ultimately, the Article focuses on three key features that either framework must include in order for restrictions of religious liberty to be justified. The Article then surveys international case law to test how faithfully courts applied these principles in religious liberty cases during COVID-19, under both the proportionality and strict scrutiny frameworks. In conclusion, the Article argues how courts can and should best protect religious liberty going forward, incorporating constitutional law analysis that the Court may consider in its future handling of religious liberty questions.
Legal Age By Alexander A. Boni-Saenz
In the legal sense, "age" is normally equated with the number of years that have passed since a person's birth. This purely chronological definition, however, may not be appropriate in all situations. Biological study has identified both physiological and behavioral markers that may indicate "age" more accurately than a purely chronological scale, and discourse surrounding identity suggests that the concept of "age" may be more subjective than legal scholarship has heretofore considered. Professor Alexander Boni-Saenz explores the different means by which we might define legal "age," offering three potential examples, and how each of the different definitions we could develop might impact administration of the law as we know it.
Pleasure Patents By Andrew Gilden and Sarah R. Wasserman Rajec
In Pleasure Patents, Professors Gilden and Wasserman Rajec unveil a rarely visited corner of the United States Patent and Trademark Office (USPTO): patnets for inventions that facilitate or increase sexual pleasure. These so-called “pleasure patents” map a history of the American social understanding around sex and invoke important questions about patent theory. In a study surveying almost four hundred pleasure patents issued from the nineteenth century to 2018, Professors Gilden and Wasserman Rajec probe at the underlying social messages embedded in the patent system. This Article sheds a new light on the USPTO and potential for patents as social drivers that not only advance innovation, but social norms interwoven with everyday life.
As medical marijuana becomes increasingly common across the country, the dissonance between state and federal law has never been more problematic. Although the federal government maintains that marijuana has no medical uses, forty-seven states and four territories have adopted provisions allowing for some form of medical cannabis. This has created problems for these patients in the employment context, essentially leaving them with no remedy where they suffer adverse employment consequences for their off-duty marijuana use. This Note begins by providing background on the conflicting state and federal law, as well as exploring the efforts undertaken so far to ensure employment protections for these patients. This Note then argues that the wrongful discharge in violation of public policy tort would be the most effective method of guaranteeing these protections across the patchwork of states until federal legalization is obtained.
In the last decade, new payment forms, known as peer-to-peer (P2P) payments, have become widely accepted and mainstream across the United States. Driven by young consumers, these innovative platforms overcame many barriers presented by traditional payment systems. With this innovation, however, comes increased potential for abuse. By operating outside of pure banking transactions and allowing for quick payments through either fiat currency or cryptocurrency between individuals, these applications are ripe for criminal activity. Although the United States has robust money laundering laws, P2P platforms do not fully fit within their boundaries. But with some finetuning, Congress can extend these regulations to fully capture criminal conduct across P2P applications. This Note analyzes how P2P payment applications fit within traditional financial technology regulation. This Note argues that, under federal law, P2P platforms should enhance their risk-based customer monitoring to surveil user accounts that link multiple payment forms, institute a short screening period on transactions for anti-money laundering risk compliance, and rigorously assess cryptocurrency transfers, similar to how they assess fiat currency transfers.
When the COVID-19 pandemic forced schools online, every parent, educator, and student had to rapidly adjust to this new frontier of remote education. This adjustment, however, was much more difficult for certain families. The students who were the most likely to be learning remotely, students living in poverty and students of color, faced daily challenges accessing WIFI, technology, instruction, and support, which effectively deprived them of an education for several months. The United States' education system must grapple with these learning losses compounded with the historic achievement gap these students faced entering into the pandemic. This Note examines two class action complaints filed in California on behalf of students and parents of color that challenged the dismal remote education these children received during and after the pandemic on equal protection grounds. It concludes that potential plaintiffs in other states can use these complaints as an example of how to appeal to their state judiciary. Ultimately, this Note suggests that with or without judicial intervention, state legislatures and boards of education should take immediate action to address these systemic issues.