The March 2025 issue of Boston College Law Review is now available. The issue features five articles and four student notes. Summaries of the nine pieces can be found below. The full texts are also available on the BCLR website.
Articles
Winning by Losing: The Strategy of Adverse Private Letter Rulings by Noah Hertz Marks
Every year, the Internal Revenue Service (IRS) issues hundreds of Private Letter Rulings (PLRs) responding to formal taxpayer inquiries about how tax law will apply to their proposed situations and transactions (which functionally bind the IRS with respect to the taxpayer). Although the Internal Revenue Code formally forbids relying on PLRs as precedent, taxpayers and practitioners closely monitor and structure their operations and advice around PLRs. Taxpayers can withdraw a PLR request at any time for any (or no) reason. Furthermore, requesting taxpayers know far in advance whether the PLR will be favorable or adverse. Because taxpayers typically do not want a formal government letter presumptively committing to an adverse position, it is assumed that only a handful of adverse PLRs exist and, in theory, none should exist. But in fact, a significant number of adverse PLRs do exist, and this Article is the first systematic empirical analysis of them. It examines a unique dataset of 473 adverse PLRs, stretching from 1977 through 2024, drawn from review of approximately 10,000 PLRs. Only ninety-five (20.1%) can be explained by human foibles like taxpayer apathy and mistakes. The rest—a significant majority—appear to be strategic actions by requesting taxpayers. Notably, sixty-five (13.7%) likely were obtained for highly strategic reasons motivated by PLRs’ normative force: to generate backlash against the IRS and to level competitive playing fields. This Article begins to map the substantive world of PLRs and identifies several normative implications for PLRs and the tax system.
Recidivist Organizational Offenders and the Organizational Sentencing Guidelines by Kaleb Byars
Despite congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of deferred prosecution agreements (DPAs) and non‑prosecution agreements (NPAs). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants’ criminal records, and they are used often in the organizational context. This Article recognizes that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and offers a practical solution to this problem. The federal sentencing scheme currently does not require an increase in an organizational defendant’s sentence when the defendant previously executed DPAs or NPAs, yet the federal sentencing guidelines do require an increase in an individual defendant’s sentence if the individual previously executed a DPA. Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs. This Article offers specific amendments for consideration.
Substitute Victims by Maytal Gilboa
Scholars have long recognized that the dominant theory of corrective justice—according to which compensatory damages are designed to return a tort victim to the position they were in prior to the tort inherently tethers damages awards to victims’ economic status. In this way, tort law’s internal logic creates perverse incentives for tortfeasors to target the poorest victims for their riskiest activities and to exercise greater care toward wealthier individuals. The Article demonstrates the centrality of this problem in tort law, illustrating how tortfeasors who can identify their potential victims in advance are likely to systematically target poorer victims for their risky activities, rather than their wealthier counterparts, rendering the former “substitute victims” for the latter. The Article illustrates how the problem of substitute victims manifests in the context of three dominant tort doctrines: negligence, nuisance, and product liability. It then proposes a novel solution, tackling the problem from a new angle by shifting the focus away from an evaluation of the harm the victim suffers and toward an assessment of the benefit the tortfeasor gains by choosing to exploit the system of compensatory damages to profit from existing socioeconomic inequities.
The Food Allergy Generation Goes to Work by D'Andra Millsap Shu
The number of children with a food allergy has doubled over the past two decades, affecting an estimated 5.6 million children. This food allergy generation is growing up and joining the workforce. But work can be a dangerous place for people with a food allergy. Food is often present at work, and allergic employees can face danger when their allergen is merely present in these circumstances, and the threat can be serious, even deadly. Very few judicial rulings exist regarding food allergy at work, but a deeper dive into news reports and personal accounts and into court documents in more than forty pending and settled cases reveals a myriad of complaints and disputes. Food allergy can qualify as a disability under federal and analog state and local disability laws. This Article identifies and categorizes the types of disability-related legal issues that are arising as the food allergy generation goes to work. Naming and understanding the problem is a crucial first step to determining how to solve it.
Green Marks and Mismatched Meanings by Mary Zhao
Demand for environmentally friendly products has skyrocketed in recent years in response to increased extreme weather events and former President Biden’s Executive Order 14008 calling for urgent climate action. Yet, consumers face a conundrum in their search for environmentally friendly products—consumers are not able to discern which of the many products with trademarks containing environmental terms such as “green” and “eco” are truly environmentally friendly. Indeed, consumers must rely on a company’s representations of its product’s environmental quality and are vulnerable to deception. Section 2(a) of the Lanham Act aims to protect consumers from deception by barring the registration of deceptive trademarks. This Article shows that the way that Section 2(a) is currently applied, however, fails to capture trademarks that are deceptive as to a product’s environmental qualities. Under Section 2(a), a trademark is deceptive if a term in the trademark communicates to consumers that a product possesses a quality that the product does not in fact possess and the quality is material to consumers’ purchasing decisions. When applying Section 2(a), U.S. Patent and Trademark Office trademark examiners must first define the term at issue and then determine whether the term, as it is defined, accurately describes the product. The definition thus plays a crucial role, but no literature exists on how examiners define environmental terms, many of which are inherently ambiguous. This Article reveals that a mismatch exists between examiners’ definitions and consumers’ understanding of environmental terms. In other words, even if an applicant’s product satisfies an examiner’s definition for the term, the product may still fail to satisfy consumers’ expectations.
Notes
The Hidden Children of Homeschooling by Gabrielle Brown
In the past fifty years, homeschooling has rapidly transformed from a fringe movement to the preferred method of education for almost four million families across the United States. The Covid-19 pandemic led to a sharp increase in the number of homeschooled children and this number has remained high ever since. With more and more families choosing to homeschool, there is a surprising lack of regulation to ensure the welfare of these children in almost every state. Eleven states do not require parents to notify their school districts of their intent to homeschool; forty-seven states do not limit the ability of child abusers or sex offenders to homeschool; and only one state requires homeschooled children to undergo the same medical exams as children attending public school. Although most homeschooling parents prioritize the best interests of their children, there is evidence that a minority of parents take advantage of the lax regulations surrounding homeschool to abuse their children and avoid the robust mandatory reporting systems of public schools. This Note identifies the regulatory gaps that leave homeschooled children particularly vulnerable to abuse and argues that specific, minimum regulatory protections need to be adopted in every state to better monitor and ensure the welfare of homeschooled children.
From the Right to Assemble to the Right to Be Rude by Alexander Franzosa
Since its ratification in 1780, Article XIX of the Massachusetts Declaration of Rights has provided a robust and independent protection for the right of the people to peaceably assemble and redress their grievances before their legislature. In 2023, in Barron v. Kolenda, the Supreme Judicial Court of Massachusetts interpreted the history and purpose of Article XIX to hold that the Town of Southborough’s civility policy for public comment periods at its governmental meetings was unconstitutional. This Note connects the history of Article XIX and its traditional interpretation with its application in Barron and describes the case’s effects on local government. This Note also argues that, although the Supreme Judicial Court reached the correct conclusion in Barron on other grounds, it misinterpreted the original intent and original public meaning of Article XIX. Finally, this Note concludes that the Supreme Judicial Court could have reached its decision in Barron solely under Article XVI, which provides the right to free speech. Instead, the court blurred the jurisprudential line between that right and the right to assemble by improperly and unnecessarily relying on Article XIX.
“Lifting the Legislative Rug”: A Proposal for Congressional Abrogation of State Legislative Privilege in Discrimination Cases Under § 1983 by Andrea T. Traietti
Originally enacted in 1871 as part of the Ku Klux Klan Act, 42 U.S.C. § 1983 today serves as one of the primary vehicles for litigants to raise civil rights claims. The statute creates a cause of action to sue “[e]very person” who under color of state law acts in violation of a constitutional right. In recent years, plaintiffs have attempted to use the statute to hold state legislators accountable for taking discriminatory action, such as racial gerrymandering and banning the instruction of critical race theory. But many of these claims have hit a dead end because of the doctrine of legislative privilege. The privilege, which federal courts have extended to state legislators as a matter of federal common law, is an evidentiary protection that shields legislators from having to testify and provide evidence related to their legislative activity. Many courts have held that the privilege is absolute in civil cases, meaning that legislators can invoke its evidentiary protections even in contexts when legislative immunity would not offer protection—such as when legislators are third parties to discovery and face no threat of personal liability. When legislators invoke the privilege in discrimination cases, it frequently leaves plaintiffs with their hands tied: they must prove that lawmakers acted with intent to discriminate, yet they are effectively blocked from obtaining from legislators any evidence pertaining to their legislative acts and their motivations behind them. Solutions are necessary to safeguard constitutional rights in these discrimination cases. This Note suggests that one solution to this problem could lie in congressional abrogation of state legislative privilege pursuant to § 1983.
Assessing the Efficacy of Third-Party Liability Copyright Doctrines Against Platforms That Host AI-Generated Content by Sharon Choi
In an online landscape where algorithm-driven social media platforms host millions of users that create, post, or interact with material that is infringing on its face, the Digital Millennium Copyright Act (DMCA) is failing. In 1998, Congress passed the DMCA to address emerging methods of copyright infringement that accompanied the public’s use of the internet and other technologies. The DMCA shields online service providers (OSPs) from liability for a user’s infringement so long as the OSP enacts the prescribed reporting mechanism for copyright holders to remove infringing content online. Now, copyright holders face another significant challenge: generative AI systems have emboldened its users with unprecedented opportunities and abilities to infringe, while certain OSPs circulate––and thus, promote––AI-generated, infringing derivative content. To demonstrate this tension, this Note discusses Universal Music Group’s removal of its catalog from TikTok’s platform and evaluates the efficacy of third-party liability copyright doctrines. This Note argues that the doctrinal ambiguities of contributory infringement and inducement render them ill-equipped to confront the rapid creation and dissemination of AI-generated content online. Instead, this Note contends that vicarious liability, having clearly articulated doctrinal elements, enables creators to enforce their copyrights against OSPs, which in turn, incentivizes OSPs to undertake proactive measures to mitigate user-infringement. This Note also discusses the European Union’s Digital Services Act and AI Act and asserts that these Acts fairly distribute legal responsibilities that effectively enforce copyright without impeding the public’s access to helpful technologies. As the United States articulates an AI legislative framework, this Note proposes that OSPs should use the elements of vicarious liability as an applicable threshold to gauge their potential liability in their pursuit of innovation.