The November issue of the Boston College Law Review is now available. The issue features four Articles and three student Notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Articles
Parent-Child Privilege as Resistance by Nila Bala
In the wake of Dobbs v. Jackson Women’s Health Organization, minors face increasing restrictions in accessing reproductive care. The majority of pregnant minors consult their parents before obtaining abortions. Although the parent-child relationship is the first to exist and is often where children turn for guidance, there is no recognized parent-child privilege in the majority of states. These healthcare conversations between parent and child now may hold criminal implications. This Article provides a novel contribution in exploring parent-child communications within the health and reproductive decision-making contexts, arguing privilege is essential to protect minors in accessing care post-Dobbs. In the process, this Article provides a broader theoretical contribution—introducing a new conceptual framework of “privilege as resistance” that envisions evidentiary parent-child privilege as a tool to oppose unjust systems and laws. The Article argues that despite using parents to legitimize judicial processes, the justice system fails to recognize them and shield their communications. Privilege as resistance can enable parents to be an integral part of anti-carceral—and far more successful—approaches to juvenile justice, such as restorative justice models. With this critical lens, the Article imagines a contemporary parent-child privilege that protects a child’s privacy, bodily autonomy, and direction over their lives.
Horizontal Federalism & the Big State "Problem" by Elizabeth Earle Beske
California regulates pork; does it offend the Constitution that pork producers in other states must comply with its regulations if they want to sell Californians pork? In National Pork Producers Council v. Ross, the Supreme Court emerged sharply divided in its approach to the practical extraterritorial spillover effect of the in-state regulations of a tantalizing market. Although a fractured majority of the Court upheld California’s Proposition 12 against a dormant Commerce Clause challenge, at least five Justices registered profound discomfort, with one dissenter expressly inviting consideration of the problem through the lens of other clauses. This Article analyzes “the Big State Problem,” which has existed in one form or another since the founding of our republic. Examining the Court’s treatment of the dormant Commerce Clause and then turning to the Constitution’s self-executing horizontal federalism clauses—the largely overlooked, under-taught, and undertheorized Article IV, Section 2 Privileges and Immunities Clause, Import-Export Clause, and Full Faith and Credit Clause—this Article concludes that none of these clauses was intended to be or is up to the task of checking a state’s nondiscriminatory regulation of products for sale in its own market.
With Fear, Favor, and Flawed Analysis: Decision-Making in U.S. Immigration Courts by Karen Musalo, Anna Law, Annie Daher, Katharine Donato, Chelsea Meiners
Immigration judges (IJs), housed within the Executive Office for Immigration Review within the Department of Justice (DOJ), make decisions in asylum and withholding claims, which are life or death matters. And although their title is “judge,” IJs are DOJ attorneys who lack independence and are particularly susceptible to political pressures. Federal court judges and scholars alike have criticized the quality and fairness of IJ decision-making, and many studies have been carried out to better understand the factors that impact it. These studies have relied principally on quantitative data because IJ decisions are not publicly available or searchable in any existing database. The authors of this Article had unprecedented access to more than 500 IJ decisions, allowing for both a quantitative and qualitative analysis. They observed differences in outcome based on gender and employment experience, determined that a common reason for denial of relief was failure of a noncitizen to meet a very stringent definition of “refugee,” and found patterns of incompetence and bias among these decisions. This Article recommends several policy reforms to address the shortcomings we identify, among them: (1) the creation of Article I immigration courts, (2) improvement of IJ competence through more stringent hiring standards and continuing education, (3) increased diversity of IJs based on employment experience, (4) reduced deference to the Board of Immigration Appeals in reviewing cases, and (5) allocating additional resources to immigration adjudication.
Toxic Battery: Pollution as a Dignitary Tort by Amber Polk
Corporate interests have contaminated the world and our bodies with chemical pollutants in pursuit of profit. This Article argues that we should view this contamination of our bodies with chemicals as an offensive battery, a violation of our right to be free from nonconsensual contacts. Our bodies are contaminated via factory discharges, train derailments and chemical spills, our use of consumer goods, and the workplace. Traditional toxic tort and statutory environmental law do nothing to prevent this and in fact encourage polluting behaviors by limiting the polluters’ right to pollute only when the pollution can be scientifically shown to cause us physical harm. Nevertheless, pollution in the absence of physical harm still violates our interest in bodily integrity and autonomy and treats us as less than, as mere means for corporate interests to realize their profits. This Article analyzes the prima facie case for treating pollution as an offensive battery, focusing on the elements of voluntary act, intent, and offense, as well as the possible defenses of consent and necessity. This Article also discusses the remedies available for pollution victims, including compensatory damages for those who need medical monitoring, punitive damages to punish the polluters who wantonly disregard our rights for their own profits, and injunctive relief to stop ongoing polluting behaviors and inform the public about the chemicals to which they are exposed through consumer goods.
Notes
Breaking the Black Box: When Jury Experimentation Becomes Jury Misconduct by Jessica Parillo
For centuries, juries in criminal trials have retreated to the privacy of their “black box” to deliberate and decide a defendant’s guilt or innocence. The secrecy of the deliberation process is a hallmark of a democratic system that tasks the public with holding their neighbors accountable to community standards. What happens, however, when this curtain of confidentiality shields troubling impropriety? Jury experimentation with evidence is one circumstance that may justify a look inside the black box. Although jurors are encouraged during deliberations to examine trial evidence, experiments in the jury room may violate a defendant’s rights to due process and a fair trial by introducing “new evidence” that the defendant does not have the opportunity to challenge in open court. Moreover, procedural “no-impeachment” rules often prohibit jurors from testifying to the process through which they reached their verdict after it has been delivered. In the absence of clarification from the U.S. Supreme Court, courts at the state and federal level are deeply split on how to approach the issue of juror experimentation with evidence. This Note examines the tension between the judicial system’s policy of jury secrecy and the potentially competing commitment to upholding the constitutional rights of defendants. This Note argues against revising the federal and state no-impeachment rules to create additional windows into the juror deliberation process, which would disturb the important function of judicial finality. Rather, trial counsel should utilize the full breadth of in-court mechanisms available to prevent improper experimentation. Judges should consider the extent to which pre-verdict remedies were used and whether the defendant was prejudiced when determining whether juror misconduct occurred.
The Missing Middle History of Massachusetts Zoning: State Overrides and Preemption in the Postwar Era by Aaron Sege
In 2021, Massachusetts sought to ease skyrocketing housing costs by enacting the MBTA Communities Act. This statute requires many cities and towns in the state to allow multifamily housing near transit stops. Scholars of local government and opponents of the law have often said that Massachusetts historically allowed municipalities to wield zoning power virtually unconstrained, but that summary glosses over important detail. Offering a new perspective on the evolving relationship between state and local power, this Note examines the history of state-level zoning law in Massachusetts. Adding to prior literature that highlighted the 1969 “Anti-Snob Zoning Law,” or Chapter 40B, it focuses on several Massachusetts statutes enacted between 1946 and 1959 that, respectively, overrode and preempted certain local zoning powers. Though often overlooked, these laws represent early precedents for Chapter 40B and the MBTA Communities Act. They also show that the state had already made pro-housing interventions against local zoning by the time Massachusetts voters preserved broad state preemption authority as part of the 1966 Home Rule Amendment. Although these earlier state interventions against exclusionary zoning did not ultimately solve the housing crisis, they laid the groundwork for the design of Chapter 40B and other provisions still in force
today.
Drug-Induced Homicide: A Harsh Weapon in the War on Drugs by Shanda Stepp
Drug-induced homicide laws are an increasingly used policy choice by lawmakers and prosecutors in combating the current opioid epidemic. A remnant of the War on Drugs, such laws conform to strict liability principles and have left many friends and family members charged with the murder of their friend or relative that died from an accidental drug overdose. This Note contends that drug-induced homicide laws cause more harm than good and that states should adopt statutes and policies that better align with accepted rationales of punishment as they combat the opioid epidemic.