The March 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.

Toxic Promises by Shmuel I. Becher, Yuval Feldman, and Meirav Furth-Matzkin

Sellers often make manipulative and dishonest claims about their products and services. Such claims, which are more likely to be present in oral interactions, substantially influence consumers’ choices. Professors Becher, Feldman and Furth-Matzkin discuss these “toxic promises,” and the present legal frameworks that inadequately address them. To ameliorate the negative outcomes between unsuspecting consumers and manipulative sellers, the authors suggest tighter legal scrutiny of sellers’ oral promises. Such solutions include a call for courts to limit the enforcement of merger and integration clauses, along with a host of other ex ante tools. Together, the authors propose that these solutions will mitigate the impact of toxic promises to foster a more fair, honest market environment for the average consumer.

The PrEP Penalty by Doron Dorfman

Pre-exposure prophylaxis, or PrEP, is a novel treatment shown to be highly effective in preventing HIV infection. Although the drug is FDA-approved and incentivized through the Affordable Care Act, the FDA continues to enforce a “blood ban” against PrEP users, who are predominantly sexually active gay men. In this Article, Professor Dorfman examines the social and moral forces underlying this paradoxical legal treatment of PrEP. Through original, quantitative research, Professor Dorfman reveals the counterintuitive and illogical responses to gay men’s use of PrEP. The findings also advance empirical knowledge and understanding of the social meanings of same-sex marriage, parenthood, and queer families post-Obergefell v. Hodges. Expanding upon the findings from the experimental study, Professor Dorfman offers normative avenues to eliminate PrEP stigma and further public health goals, arguing for reforming FDA policy to specifically allow PrEP users to give blood and, ultimately, for completely abolishing the blood ban.

Resuscitating Consent by Megan S. Wright

True respect for patient autonomy means that treatment refusal, whether informed or not, should always be an option. Yet, Professor Wright notes evidence that healthcare providers sometimes ignore treatment refusals and resort to force to treat patients over their contemporaneous objection, which may be facilitated by the incapacity exception to informed consent requirements. Professor Wright argues that if providers misuse the incapacity exception in order to treat patients over their objection, this nullifies informed consent law. This Article asserts that patients should not be treated over their objection even when providers do not perceive refusals to be rational because such treatment is inconsistent with respect for patient autonomy and bodily integrity, promotion of wellbeing, and maintenance of the rule of law. As a remedy, this Article suggests that states should adopt laws that provide adults with absolute legal capacity to refuse medical treatment unless a court overrides their decision.

Disaster Vulnerability by Lisa Grow, Brigham Daniels, Doug Spencer, Chantel Sloan, Natalie Blades, M. Teresa Gómez, and Sarah R. Christensen

In this Article, Professors Grow and Daniels, along with a team of issue experts and statisticians, develop an index to analyze three dimensions of disaster vulnerability after the COVID-19 pandemic: the geography of vulnerability, competing or conflicting vulnerabilities, and political vulnerability. Rooted in empirical data, this Article shows how, going forward, similar modeling could make disaster management more proactive to anticipate needs, prioritize disaster mitigation, and triage community resources. The Professors also consider competing or conflicting vulnerabilities––situations where law-makers and policy-makers must prioritize one vulnerable group or one aspect of vulnerability over another. Finally, the Article explores political vulnerability, analyzing how disasters make already-vulnerable groups even more vulnerable to certain harms, including political neglect, stigmatization, disenfranchisement, and displacement. In sum, this Article draws upon the costly lessons of COVID-19 to suggest a more robust framework for law-makers and policy-makers to assess and respond to vulnerability in future disasters.

The End of Purposeful Discrimination: The Shift to an Objective Batson Standard by Timothy J. Conklin

In 1986, in Batson v. Kentucky, the Supreme Court established a three-step analysis to prohibit the discriminatory use of peremptory challenges in jury selection. Under Batson, a peremptory challenge is prohibited if it was motivated by purposeful discrimination. Since 2018, numerous state courts and legislatures have implemented reforms to lower the standard for discriminatory peremptory challenges from Batson v. Kentucky’s purposeful discrimination framework. That reformed standard prohibits peremptory challenges if an “objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” This Note analyzes the adoption and implementation of this new objective Batson standard and argues that despite its ability to eliminate some discriminatory challenges, it poses significant burdens on the litigants, the courts, and the community at large. As an alternative to that standard, this Note argues that states should abolish peremptory challenges outright and implement comprehensive reforms in the jury summoning process.  

“The Right to Protest for Right”: Reaffirming the First Amendment Principle That Limits the Tort Liability of Protest Organizers by Allison R. Ferraris

Forty years ago, in NAACP v. Claiborne Hardware Company, the Supreme Court held that the First Amendment precludes courts from holding protest organizers liable for the violent acts of third parties when the organizers themselves do not incite or participate in such violence. In 2019, the Fifth Circuit called this longstanding principle into question when it held in Doe v. Mckesson that DeRay Mckesson, an activist affiliated with the Black Lives Matter Movement, could be held liable for damages to a police officer whom an unidentified assailant injured at a protest that Mckesson helped organize. Although the Supreme Court reversed and remanded the Fifth Circuit's decision in November 2020, the Court did not opine on the First Amendment issue, and thus, left the breadth of Claiborne Hardware’s protection for protest organizers in the balance. Through the lens of the George Floyd protests that transpired during the summer of 2020, this Note demonstrates that protests remain a vital present-day vehicle through which activists generate the public pressure necessary to drive change. Moreover, it cautions that in the Fifth Circuit’s regime, whereby organizers could be held financially responsible for damages deriving from the violent acts of others, activists might refrain from organizing such protests altogether to avoid liability. Thus, this Note argues that to remain consistent with the democratic policies that underlie First Amendment jurisprudence, Claiborne Hardware must stand for the principle that the First Amendment shields protest organizers from liability for third-party-inflicted damages, and it urges the Court to look for an opportunity to accordingly reaffirm this principle in light of the Fifth Circuit's latest attack.

All Work and No Pay: The Massachusetts Overtime Statute and Its Agricultural Exemption by Emily Jordan

At the federal and state level, overtime statutes often contain agricultural exemptions that permit farm owners to avoid payment of overtime compensation to farmworkers. In 2019, the Massachusetts Supreme Judicial Court in Arias-Villano v. Chang & Sons Enterprises, Inc. limited the state agricultural exemption to only those farmworkers working in harvesting, but not those working in post-harvesting. Following the decision, the Massachusetts Department of Labor Standards issued an advisory letter that expanded the agricultural exemption beyond the limits established in Chang & Sons. Most recently, in 2021, the Fairness for Farmworkers Coalition introduced the Fairness for Farmworkers Act to abolish the agricultural exemption. This Note discusses the legislative intent of Massachusetts’s overtime statute, Chapter 151, Section 1A, and the implications of the recent advisory. It then reviews the current landscape of state-level agricultural exemptions, particularly New York’s newly enacted Farm Laborers Fair Labor Practices Act (FLFLPA). Using the FLFLPA as a reference point, this Note argues that the Massachusetts Legislature should adopt the Fairness to Farmworkers Act and abolish the agricultural exemption to better protect farmworkers.

Pornography Isn’t the Problem: A Feminist Theoretical Perspective on the War Against Pornhub by Taylor Comerford

Starting in 2020, an unlikely coalition––including Christian dominionists, a New York Times editorialist, and federal legislators––rallied together against Pornhub and its parent company, MindGeek. These actors assert that Pornhub cannot (or will not) effectively prevent or remove user-posted content featuring sexual violence, sex trafficking, or nonconsensual pornography from their sites, garnering significant public outcry. In December 2021, Senator Josh Hawley introduced the Survivors of Human Trafficking Fight Back Act, which proposed criminal penalties and a federal cause of action against websites that either post or refuse to remove criminal pornography from their sites. Although the bill ultimately died in the Senate, Congress has passed comparable legislation to regulate the online sex industry, and is likely to propose similar bills in the future. Using the lens of feminist legal theory, this Note discusses the arguments for and against legislation penalizing pornography websites for posting or hosting content featuring sexual violence. This Note further argues that Congress should not pass similar bills because they subject transactional sex workers and pornography performers to economic and physical harm, making it an ineffective and misguided method to address the core harms of digital sexual exploitation.