The May issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as two student notes. Summaries of the five pieces can be found below. The full texts are also available on the BCLR website.

Rethinking Foreign Affairs Deference by Elad D. Gil

In Rethinking Foreign Affairs Deference, Professor Elad Gil weighs the four existing theoretical approaches American courts use to grapple with cases imbued with foreign affairs issues––issues typically resolved under the purview of the executive branch. These four approaches stem from the U.S. Supreme Court’s notable decision in Trump v. Hawaii. In this recent case, the justices proffered a range of views concerning the Court’s handling of foreign affairs matters within its judicial decision-making. Without a consensus from the Court on this issue, Professor Gil looks to the so-called Margin of Appreciation (MoA) doctrine that international courts apply in similar cases. The MoA doctrine informs judicial questions entangled with foreign affairs issues and provides judges with a clear framework for balancing the various legal and policy interests at play. Professor Gil remodels the international MoA doctrine for a domestic application. By bringing the MoA home to American courts, Professor Gil contends, our judicial system can better navigate cases that directly implicate foreign policy and national security while preserving separation of powers, interbranch dialogue, and respect for institutions.

Medicare "Bankruptcy" by Matthew B. Lawrence

Medicare is an enormously important insurance program for the disabled and the elderly, but its expenditures outpace its funding, What would happen if the Medicare program went "bankrupt" and it was no longer able to reimburse medical providers for rendered services? Professor Matthew Lawrence explores this possibility, engaging the significant legal issues involved and discussing the ways in which lawmakers might be able to prevent or mitigate the impact of Medicare insolvency. This Article provides specific discussion of the various parties involved in the present administration of the Medicare program - including healthcare and insurance industry actors, Congress, the courts, and executive agencies such as the Department of Health and Human Services - and advocates for the development of an insolvency provision in future Medicare legislation to address how to resolve the harms of a potential Medicare bankruptcy and to encourage reform of present practices to help prevent it.

Designing an Americans with Abilities Act: Consciousness, Capabilities, and Civil Rights by Zachary E. Shapiro et al.

The Americans with Disabilities Act (ADA) was enacted with the important purpose of safeguarding the rights of persons with disabilities from discrimination, but the ADA has fallen short of providing for persons with disabilities in some areas. This Article draws from the authors' expertise on serious brain injuries to highlight the ADA's limitations as applied to individuals suffering from various injury-induced states of consciousness, making particular note of the ADA's lack of adaptability to ongoing improvements in diagnoses of these conditions - which impacts understanding of patients' rights and capabilities - and continuous advancements in medical technology designed to support brain injury patients. In recognition of these limitations, this Article advocates for new legislation - an Americans with Abilities Act - which more fully contemplates the personal capacities of brain injury patients and more readily supports the benefits of technological advancements.    

Reflections from the Brink of Tax Warfare: Developing Countries, Digital Services Taxes, and an Opportunity for More Just Global Governance with the OECD's Two-Pillar Solution by Connor L. Smith

Prior to the announcement of the Organization for Economic Cooperation and Development’s (OECD) global tax agreement to combat the challenges of a global digital economy in 2021, the proliferation of digital services taxes (DSTs) in individual countries threatened to spark international tax warfare. The United States argued that DSTs unjustifiably discriminated against U.S. tech champions like Google and Amazon and threatened retaliatory tariffs against countries imposing them. Nevertheless, DSTs remained popular policy tools in both developed and developing countries, shaping the course of OECD tax negotiations. Focusing on DSTs that emerged in the developing world, this Note reconceptualizes the recent DST phenomenon as a case study on the role of developing countries in broader debates about economic globalization and global governance. It argues that although many of the familiar critiques of economic globalization played on repeat in the debate over DSTs, the OECD's subsequent Pillar One solution encapsulated some positive changes to the archetypal globalization and global governance narratives. Taking stock of these changes, this Note concludes that DSTs are and were a powerful negotiating tool for developing countries to reorient the principles of international tax toward a more equitable distribution of taxing rights and to recognize broader tax goals beyond economic profit.

The Not-So-Straight First Amendment: Why Prohibitions on Conversion Therapy for Children Survive Strict Scrutiny by Samuel G. Bernstein

The past few decades have seen a dramatic shift in the acceptance of the LGBTQ community, and with this change a dismissal of Sexual Orientation Change Efforts (“SOCE”) therapy, also known as conversion therapy.  Numerous states and localities have enacted statutes that prohibit licensed mental health professionals from administering SOCE therapy to minors.  In November 2020, however, the United States Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, became the first federal appellate court to hold that bans on SOCE therapy for minors are unconstitutional restrictions of freedom of speech, and struck down the City of Boca Raton's and Palm Beach County, Florida’s anti-SOCE ordinances.  In reviewing the bans under the strict scrutiny standard, the Eleventh Circuit’s decision in Otto departs from the other circuits’ decisions not only in outcome but also in analysis.  This Note reviews the Eleventh Circuit's approach to answering the freedom of speech claims brought against anti-SOCE legislation, and argues, in contrast to the Eleventh Circuit’s finding in Otto, that anti-SOCE legislation is one of the rare restrictions on speech that meets the demanding standards of strict scrutiny.