The June issue of Boston College Law Review is now available. The issue features two articles by outside authors as well as five student notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Maximizing #MeToo: Intersectionality & the Movement by Jamillah Bowman Williams
Although women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins. In this Article, Professor Williams analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to abandon women of color. Professor Williams discusses the weaknesses of reform efforts to adequately address intersectionality in terms of the online conversation, the traditional social movement activity occurring offline, and the consequential legal activity. Professor Williams surveys the circuit courts' present approach to adjudicating harassment claims brought by women of color under Title VII of the Civil Rights Act of 1964. Her review reveals how the legal standard the courts apply often fails to weigh the facts involved in intersectional harassment cases objectively, especially at the summary judgment stage. In light of this issue, this Article closes by proposing several reforms for advocates to leverage #MeToo as an opportunity to reshape law, organizations, and culture to better protect all women, but particularly women of color.
Constitutional Remedies As Constitutional Law by Martin H. Redish
Judicial review, the power to interpret and apply the provisions of the Constitution, is a fundamental power of the judiciary and an essential component of the defenses against tyranny provided by the separation of powers. However, Professor Redish identifies a problem: if, despite the judiciary's unquestioned authority to wield judicial review, the other political branches control the remedies the judiciary may levy in enforcing the Constitution, those defenses can be dangerously compromised. Professor Redish argues that the ability to control remedies rightfully belongs to the judiciary if we are to realize the full scope of the protections envisioned by the Framers of our Constitution. His discussion identifies the logical connections between constitutional review and constitutional remedies, necessitating control of both by a single political branch, explores the need for further, careful examination of this problem, and anticipates potential challenges to his solutions.
Marchand v. Barnhill's Impact on the Duty of Oversight: New Factors to Assess Directors' Liability for Breaching the Duty of Oversight by Katherine King
In 2019, the Delaware Supreme Court reversed the dismissal of a complaint that alleged that Blue Bell directors breached their duty of oversight amidst the company’s listeria crisis. This decision changed the landscape for director liability, opening the door for the historically difficult Caremark claims to survive where a corporation has one significant product and a primary external regulator. Exploring the upper and lower boundaries of these factors via the lens of Boeing’s alleged failure of oversight surrounding the tragic 737 MAX crashes, this Note explores how oversight claims will shape fiduciary claims in the future.
A State-Level Response to Ineffective Federal Place-Based Investment Tax Incentives by Michelle Chiang Perry
Using tax expenditures, the federal government can deploy economic incentives to alter our choices in the service of public policy goals. Doing so reduces not only federal but also state tax revenue because state tax law often conforms to definitions of income contained in the Internal Revenue Code. State governments, however, may not have the same goals as Congress, so tax incentives implemented nationally may not always be a good fit for states. This Note focuses on tax expenditures directing private investments into low-income neighborhoods, known as federal place-based investment tax incentives. It argues that because their impact is ambiguous at best, state governments should scrutinize such incentives and decouple state tax law from these provisions when they hurt the local communities they purport to help. This Note then proposes a framework to assist states in evaluating the local impact of federal place-based investment tax incentives.
Commodity or Currency: Cryptocurrency Valuation in Bankruptcy and the Trustee's Recovery Powers by Josephine Shawver
Cryptocurrencies have risen to global prominence since their origin in 2009. As cryptocurrencies have grown in number and use, so has their appearance as assets in bankruptcy proceedings. The Bankruptcy Code does not provide much guidance on the question of cryptocurrency classification in bankruptcies, but bankruptcy courts must nonetheless determine whether to treat these assets as currencies or commodities. The classification matters particularly in the context of asset valuation in the event of fraudulent and preferential transfers, which is difficult to do with cryptocurrencies because their values can fluctuate widely in a matter of days. This Note argues that bankruptcy courts should treat cryptocurrencies as commodities, because this largely eliminates the need to value these tricky assets in such circumstances. This Note further argues that in situations where valuation is necessary despite the commodity classification, bankruptcy courts should value the cryptocurrency as of the date of the bankruptcy petition.
The Impact of Marijuana Decriminalization on Legal Permanent Residents: Why Descheduling Marijuana at the Federal Level Should Be a High Priority by Michelle Kain
Despite growing calls to legalize the drug, the federal government has remained committed to prohibiting marijuana. Several states, by contrast, have responded to these calls by decriminalizing the drug. Although the average citizen stands to benefit from this change, as he or she will face fewer meaningful consequences within the criminal justice system, legal permanent residents may actually be negatively impacted. Indeed, the decriminalization of marijuana may increase the likelihood that legal permanent residents will face severe, adverse immigration consequences as a result of low-level marijuana offenses. This Note analyzes the various ways states have stepped up to help protect noncitizens residing in their borders, as well as the federal government's most recent attempt at descheduling marijuana.
The Right to Remain Silent: Abortion and Compelled Physician Speech by J. Aidan Lang
The First Amendment to the U.S. Constitution guarantees freedom of speech. Relatedly, a corollary of free speech often referred to as the compelled speech doctrine prohibits the government from forcing individuals to promote a particular viewpoint or ideology. Restrictive abortion laws at the state level have raised interesting questions about the compelled speech doctrine's scope. Thus far, three federal appellate courts have considered whether laws requiring physicians to display ultrasound images of fetuses and describe the human features before performing abortions violate the physicians’ First Amendment right to free speech. A circuit split exists in favor of upholding ultrasound narration requirements against such challenges. This Note discusses the varying approaches employed by these circuit courts in resolving this constitutional question and proposes a framework for future analysis. Employing this framework, this Note ultimately argues that ultrasound narration laws violate physicians’ right to free speech.