The January 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.

Climate Choice Architecture by Professor Felix Mormann

In this Article, Professor Mormann evaluates the potential for climate “nudges,'' or subtle behavioral changes, to improve climate policy. Nudges have already been deployed in a variety of contexts, including in emissions reduction and water conservation. Based on the success of this “choice architecture” in other contexts, and the bipartisan support for nudges, Professor Mormann advocates for the introduction of nudges to climate change policy. With those subtle behavioral changes, along with other policy incentives and regulations, Professor Mormann argues that stakeholders may become advocates for actions that mitigate and prevent the externalities of climate change. 

Dark Contracts by Professors Shmuel I. Becher & Uri Benoliel 

Professors Becher and Benoliel examine the harms of non-transparent contracts, which they term “Dark Contracts.” Dark Contracts make it more difficult for consumers to become informed, to discover unethical contractual behavior, and to hold firms accountable. These contracts might have hidden (yet important) terms, confusing fonts and organization, and unfair practices in the actual performance of the contract. These non-transparent practices can harm uninformed consumers. As a solution, Professors Becher and Benoliel encourage the implementation of transparency principles to more closely evaluate firms, foster informed consumer decision-making, and prevent unethical contracting from becoming the norm. 

Need-Based Employment by Professor Shayak Sarkar

In this Article, Professor Sarkar assesses historical and current forms of need-based employment in the United States. Based on a survey of examples, including New Deal era programs and modern incarnations like the Earned Income Tax Credit, the Article lays out several principles for modern need-based employment programs. It then grapples with questions about the potential disparate impacts and discrimination challenges that need-based employment can present.  

Choosing to ‘Look Up’: The Case for a Single, Mandated Climate Change Disclosure Framework by Jo-an Chen

As the Environment, Social, and Governance (ESG) movement enters the mainstream, investors are demanding more climate-related ESG disclosures from public companies to better determine if the companies they invest in are sustainable in the long run. In March 2022, the Securities and Exchange Commission (SEC) proposed rules requiring companies to disclose certain climate-related risks in statements filed with the SEC. This proposal, in addition with other SEC actions, indicates the shift away from the status quo of voluntary and varied ESG reporting approaches towards a single, mandated climate-related disclosure framework. This Note argues that the proposed single, mandated climate-related disclosure framework is the preferred approach, but that the SEC’s proposed rule fails to sufficiently address industry-specific disclosures and still grants too much discretion to companies. 

Rage Against the Machine: Why the Music Modernization Act Is but the First Step in Musicians’ Battle to Reclaim the Value of Their Works by Tanner Kramp

Digital streaming’s rise as the primary mode of music consumption worldwide devalued music and made it increasingly difficult for artists to profit from their works. For years, antiquated music copyright law failed to regulate top streaming services like Spotify, exacerbating musicians’ income woes. In 2018, Congress enacted the Music Modernization Act (MMA) to bring music copyright law into the twenty-first century and return adequate compensation to artists. Encouragingly, the MMA established a more equitable “willing-buyer” standard for calculating musicians’ streaming royalties and created an independent nonprofit agency to oversee the distribution of music royalties. Nonetheless, the last few years have exposed the limitations of this widely celebrated piece of legislation, which propagates a dichotomy in industry power between musicians and streaming companies. This note proposes three reforms to the MMA to ensure musicians receive more equitable compensation in the era of music streaming.