BCLR Releases Vol. LIII No. 2

Boston College Law Review is pleased to announce the publication of our March 2012 issue.

•  Brad Snyder & John Q. Barrett, Rehnquist’s Missing Letter: A Former Law Clerk’s 1955 Thoughts on Justice Jackson and Brown

Can a missing letter reveal the inner thoughts of a Supreme Court chief justice on one of the most important twentieth century issues? More to the point, was Chief Justice William H. Rehnquist, a former clerk to Justice Robert H. Jackson, disappointed by Brown v. Board of Education, a unanimous opinion? These are the questions at the heart of Rehnquist’s Missing Letter: A Former Law Clerk’s 1955 Thoughts on Justice Jackson and Brown, the provocative essay by Brad Snyder and John Q. Barrett. The history of Rehnquist’s memorandum to Jackson in which he wrote, “I think Plessy v. Ferguson was right and should be reaffirmed,” is well documented. What is less known, however, is what Rehnquist thought of the Brown decision. A newly discovered letter—yet one that is still missing—that Rehnquist wrote to Justice Felix Frankfurter in 1955, along with a series of letters sent between clerks and justices about Rehnquist’s letter, reveal what Rehnquist really thought about Brown and about Justice Jackson personally. The New York Times referred to the conclusions drawn by Snyder and Barrett regarding Rehnquist’s views as “stinging,” especially considering that had the missing letter been known at the time of Rehnquist’s confirmation hearings, “it would have been a bombshell.” One clerk wrote in response to Rehnquist’s letter that Rehnquist described Jackson as a justice who “had a tendency to go off half-cocked,” whose opinions didn’t “seem to go anywhere” and who died without leaving “a lasting influence on the court.” Indeed, through their research and writing, Snyder, a professor at the University of Wisconsin Law School, and Barrett, a professor at St. John’s School of Law, have produced one of the most compelling legal stories of the year.

Derek W. Black, Middle-Income Peers as Educational Resources and the Constitutional Right to Equal Access

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. As an alternative to mandatory segregation, some scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. In Middle-Income Peers as Educational Resources and the Constitutional Right to Equal Access, Derek W. Black, Professor of Law at The University of South Carolina School of Law, offers another solution. Rather than simply importing concepts from federal desegregation into school finance, Black articulates a unique theory of equal access to middle-income peers that is solidly grounded in state constitutional and school finance principles. In particular, it conceptualizes middle-income students as one of the education resources at school districts’ disposal. As such, school finance principles of strategic and equitable distribution of resources apply. Black also provides results from an empirical study of district level practices which reveal that conventional wisdom may have underestimated the level of inequality that occurs within districts. The racial inequality in access to middle-income peers within districts is, Black argues, vast and corresponds with dramatic shifts in achievement gaps, a core indicator of constitutional violations in school finance litigation.

•  Jeannette Cox, Pregnancy as “Disability” and the Amended Americans with Disabilities Act

Pregnant women suffer from a disability. If that statement seems jarring, Jeannette Cox might suggest that you should re-assess what the word “disability” means rather than the word “pregnant.” In Pregnancy as “Disability” and the Amended Americans with Disabilities Act, Cox attacks the longstanding assumption that a recognized “disability” requires a medical diagnosis of a “defect.” Instead, Cox reframes a “disability” as an impairment in the “interaction between the individuals body and her social environment.” In this light, Cox goes on to advocate that pregnancy, with the temporary physical limitations, should be considered a “disability” under the Americans with Disabilities Act because the amended act includes coverage of persons with temporary physical limitations. Naturally, an argument that pregnant women are disabled is sure to grab attention, if not stir up controversy. Cox, a law professor who specializes in disability and employment discrimination at the University of Dayton School of Law, has received substantial media attention since accepting the BCLR’s publication offer. Coverage of her thesis has appeared on National Public Radio, the Wall Street Journal’s Law Blog, the Huffington Post, and newspapers throughout the country.

•  Alan L. Durham, The Fractal Geometry of Invention

Patent disputes turn on the question of “what did the patentee (or patent applicant) invent?” In The Fractal Geometry of Invention, Alan L. Durham demonstrates how a thorough understanding of geometric fractals informs the analysis of what exactly the patentee did or did not invent. Durham notes that a working knowledge of fractals is essential to resolving patent disputes because many “inventions are variations on what has come before and have the potential to generate further variations or refinements.” Fractals are geometric figures with never-ending details, containing repetitions with slight variations with every repetition. They are omnipresent in the natural and man-made worlds. Indeed, the coast line of Great Britain is a fractal. Durham, the Judge Robert S. Vance Professor of Law at the University of Alabama Law School, provides a riveting account of fractals and their application to patent law disputes. He notes that the fractal properties of multiplicity, latency, and self-similarity “contribute to many of the perennial difficulties in patent law,” difficulties that Durham argues can be overcome by practitioners who understand the properties of fractals.

•  Maurice E. Stucke, Reconsidering Antitrust’s Goals

Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. In Reconsidering Antitrust’s Goals, Maurice E. Stucke, Associate Professor at the University of Tennessee College of Law, explains that the Supreme Court complains about antitrust suits and places greater faith in the antitrust function being subsumed in a regulatory framework. Stucke points to two factors contributing to the decline in antitrust investigations: the salience of the U.S. antitrust goals and an antitrust policy increasingly reliant on an incomplete, distorted conception of competition. Arguing that the United States is ripe for a new antitrust policy cycle, Stucke proposes how to integrate antitrust’s multiple policy objectives (ensuring an effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom) into a legal framework, highlighting how such integration would revive antitrust’s relevance. This Article was nominated for the Institute of Competition Law’s 2012 Antitrust Writing Award.

•  Christopher Clements, Note, Protecting Protected Speech: Violent Video Game Legislation Post-Brown v. Entertainment Merchants Ass’n

In his Note, Protecting Protected Speech: Violent Video Game Legislation Post-Brown v. Entertainment Merchants Ass’n, Christopher Clements considers how, if at all, the Supreme Court’s obscenity jurisprudence applies to violent video games. Violent video games have drawn the ire of parents and commentators alike ever since their inception two decades ago. Following several tragic school shootings in the late 1990s, legislators began exploring ways to limit childhood exposure to violent media. Multiple states have tried their hand at regulating the sale of violent video games to minors. Most recently, in 2011, the Supreme Court held that California’s attempt to legislate in this area was violative of the First Amendment. Clements argues that legislators should tread carefully in the wake of the Supreme Court’s unequivocal ruling. Rather than attempt to self-categorize what is or is not appropriate for children, Clements contends, they should instead mandate that video game developers and retailers participate in the ubiquitous Entertainment Software Rating Board (ESRB) rating system.

•  Alexandra Olson, Note, Dilution by Tarnishment: An Unworkable Cause of Action in Cases of Artistic Expression

In her note, Dilution by Tarnishment: An Unworkable Cause of Action in Cases of Artistic Expression, Alexandra Olson addresses the changes the Trademark Dilution Revision Act (TDRA) made to dilution law and how these amendments will always preclude mark owners from prevailing in situations where their famous marks are tarnished by use in expressive works. In 2006 in the TDRA, Congress explicitly included a cause of action for dilution by tarnishment to provide relief to owners whose marks are used in ways that tarnish the reputation of those marks. Despite this change, Congress included several amendments that will unfairly allow tarnishing uses in expressive works to easily escape liability. Olson analyzes these amendments and suggests that the favorable statutory treatment of expressive works is an outlier among other areas of intellectual property where courts use more flexible balancing tests to balance mark holders’ rights, copyright owners’ rights, and rights of publicity with defendants’ First Amendment rights. Drawing from these areas of intellectual property, Olson proposes changes to the TDRA, including a fair use balancing test that would more appropriately balance these competing interests.

•  Jonathan Romiti, Note, Playing Politics with Shareholder Value: The Case for Applying Fiduciary Law to Corporate Political Donations Post-Citizens United

The 2010 midterm elections following the Supreme Court’s landmark decision in Citizens United v. FEC observed an extreme spike in contributions from outside (non-party) sources, which spent over four times more than they had ever before on a single midterm election cycle ($305 million). To the extent that corporations were responsible for this influx of outside money, a legitimate question arises—especially given the increasing polarization of American politics: is corporate participation in political campaigns really good for a company’s bottom line? Citing empirical and experiential data, in his Note, Playing Politics with Shareholder Value: The Case for Applying Fiduciary Law to Corporate Political Donations Post-Citizens United, Jonathan Romiti concludes that voluntarily injecting a corporation into the highly-charged political arena is usually bad for business. Against the backdrop of Citizens United and its apparent effects on American corporations’ political behavior, Romiti explains how fiduciary law could check management’s wide discretion in pledging corporate funds for what often amounts to a non-business purpose and promote greater accountability and transparency when business enterprises become involved in highly contentious political campaigns.

•  Kathryn Smith, Note, Hey That’s My Valor: The Stolen Valor Act and Government Regulation of False Speech Under the First Amendment

The Stolen Valor Act criminalizes lies about receiving military decorations. In her Note, Hey That’s My Valor: The Stolen Valor Act and Government Regulation of False Speech Under the First Amendment, Kathryn Smith explores whether the Stolen Valor Act is constitutional under the First Amendment. Through the Stolen Valor Act, the government seeks to protect the honor associated with receiving a military decoration from people who falsely claim to have received one. Some courts have held that the false statements proscribed by the Stolen Valor Act fall outside of First Amendment protection. Other courts, most notably the U.S. Court of Appeals for the Ninth Circuit, in the 2010 decision United States v. Alvarez, held that lies about military decorations are protected speech and that the Stolen Valor Act is unconstitutional because it does not meet strict scrutiny. Smith argues that § 704(b) of the Stolen Valor Act does not fall into any category of unprotected speech, does not meet the strict scrutiny test for government regulation of protected speech, and therefore is an unconstitutional restriction of protected speech.

•  Kimberley P. Ver Ploeg, Case Comment, Shifting Targets on Shifting Fees: Attorney’s Fees in the Wake of Singer Management Consultants, Inc. v. Milgram

On June 15, 2011, in Singer Management Consultants, Inc. v. Milgram, the U.S. Court of Appeals for the Third Circuit sitting en banc held that a temporary restraining order vacated after a defendant’s in-court change in position is insufficient to confer prevailing-party status for purposes of awarding attorney’s fees. As a result, parties who obtain in-court relief short of a formal court order may not be able to obtain attorney’s fees. In her Comment, Kimberley P. Ver Ploeg argues that in arriving at that decision, the Singer court too narrowly construed the phrase “judicially sanctioned.” She further advises that, to avoid this result, attorneys who plan to seek fees should request a permanent formal order, which courts have recognized as sufficient to confer prevailing-party status.

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