BCLR Releases Vol. LIII No. 4

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

• Victor Brudney, The First Amendment and Commercial Speech

Since the Supreme Court’s Citizens United v. Federal Election Commission opinion in 2010, the intersection of corporate political speech and First Amendment protection has become a popular subject among constitutional scholars. In The First Amendment and Commercial Speech, Victor Brudney, Emeritus Professor at Harvard Law School, broaches a similar subject but looks more generally at the constitutionality of regulating commercial speech. Brudney examines the historical context of First Amendment protection afforded to commercial speech, specifically noting the inconsistent autonomy concerns applied by the Court over time. Brudney argues that autonomy concerns of speakers and listeners are not enough to justify First Amendment protection for commercial speech. The context of commercial speech is the most important element of the analysis, according to Brudney, and this article explains how different forms of commercial expression deserve different levels of First Amendment protection.

Alex Glashausser, The Extension Clause And The Supreme Court’s Jurisdictional Independence

In federal courts jurisprudence, the conventional view is that Congress has, if not plenary, nearly plenary control to define federal court jurisdiction, including that of the Supreme Court. The result of that interpretation is that Congress, in theory, if not in practice, has the power to insulate laws or practices from federal court review, including those that regulate such areas as reproductive rights and same-sex marriage. In The Extension Clause and the Supreme Court’s Jurisdictional Independence, a companion piece to his 2010 article in the Boston College Law Review, Alex Glashausser, Professor of Law at the Washburn University School of Law, seeks to knock out one of the legs that supports this conventional view. The predominant view considers the Extension Clause of the Constitution—which provides that “[t]he judicial Power shall extend” to nine types of cases and controversies—to allow congressional control over Supreme Court jurisdiction. Through a review of the drafting history from the Federal Convention of 1787 and a study of the words actually used (and not used) by the drafters, Glashausser comes to the conclusion that Extension Clause does not support the interpretation that the conventional view places on it. Further, he asserts that the proper interpretation of the clause, as a safeguard of the Court’s jurisdiction over certain cases and controversies, is essential to maintaining the independence of the federal judiciary, as was envisioned by the drafters.

Irina D. Manta, Reasonable Copyright

Just who is the so-called reasonable man?  And should he really be guiding our copyright jurisprudence?  Irina D. Manta, Associate Professor of Law at the Maurice A. Dean School of Law at Hofstra University, critiques the reasonable man standard in copyright law by thoroughly examining cognitive bias literature.  Copyright law asks juries and/or judges to determine whether the reasonable man would find two works “substantially similar.”  Some biases, Manta concludes, are simply too strong and can cloud a jury’s or judge’s mind when deciding whether the reasonable man would find one work substantially similar to another, especially because copyright covers vague subject matters such as art, music, and literature. Reasonable Copyright argues that a subjective standard based on the intended audience of the copyrighted work can help avoid the inevitable cognitive bias that sneaks into copyright law, advocating a survey approach similar to that taken in trademark disputes to help mold the substantial similarity question.

Dru Stevenson & Sonny Eckhart, Standing as Channeling in the Administrative Age

In Standing as Channeling in the Administrative Age, Dru Stevenson, Professor of Law at South Texas College of Law, and Sonny Eckhart argue that administrative agencies have a role to play in defining standing in citizen suits. Stevenson and Eckhart evaluate the modern standing decisions of the Supreme Court and the guidance the Court has provided to administrative agencies. Relying on both Congressional delegations of power and the recent Supreme Court decisions of Massachusetts v. EPA and American Electric Power Company v. Connecticut, they argue that administrative agencies should have a significant role in defining both the injury in fact and causation prongs of standing. They note that the Court has explicitly invited legislative definitions of standing in Lujan v. Defenders of Wildlife. Stevenson and Eckhart suggest that the agencies also adopt the “special solicitude” rule adopted by the Court in Massachusetts, which gives states attorneys general preferential treatment in the standing analysis.

Robin Fretwell WilsonThe Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State

In her timely article, The Calculus of Accommodation, Robin Fretwell Wilson, Professor of Law at Washington & Lee University School of Law, asks whether, and under what circumstances, religious groups and individuals should be exempted from certain civil laws. Availability of such religious exemptions is subject to heated political debates and extensive litigation. Most recently, religious employers asserted that they were forced to decide between violating the law and violating their conscience when President Obama’s health care reform mandated coverage for contraceptives and sterilization. Similar clashes between religion and the state sprang from refusal by religious groups and individuals to assist with abortions or facilitate same-sex marriages. Wilson carefully examines the delicate balance between respecting one’s religious beliefs and ensuring that overly generous religious accommodations do not threaten access and impose significant costs on others. Analyzing this tension between religious liberty and access from a legislative perspective, Wilson responds to seven “sticking points”—concerns raised by legislators about the propriety and feasibility of religious exemptions. In her timely article, Wilson suggests that access and religious liberty are not mutually exclusive and argues that religious accommodations qualified by hardship to the public allow for successful coexistence of access and religious freedom.

R. Michael Cassidy, Essay, Beyond Practical Skills: Nine Steps for Improving Legal Education Now

Five years after the Carnegie Report Educating Lawyers called upon law schools to adopt an integrated approach to legal education—teaching practical skills and professionalism across the curriculum—few schools have risen to that enormous challenge. Comprehensive reform will take years, requiring major resource reallocations, realignment of teaching responsibilities, redesign of courses, and changes to graduation requirements. R. Michael Cassidy, Professor of Law at Boston College Law School, in Beyond Practical Skills: Nine Steps for Improving Legal Education Now, empowers faculty members and administrators desiring to respond to the Carnegie Report with immediate, realizable tools to improve legal education in the United States. Cassidy’s nine proposals, each modest in isolation, could collectively have a huge impact on law students’ professional development. “Our current students deserve our best efforts to make progress now toward improving the professional education of lawyers, even if it means proceeding in a piecemeal fashion,” writes Cassidy.

Nathan G. Ingham, Note, Anticipating New References: Predicting the Contours of the New “Otherwise Available to the Public” Category of Prior Art

In his Note, Anticipating New References: Predicting the Contours of the New “Otherwise Available to the Public” Category of Prior Art, Nathan Ingham examines an ambiguity in the Leahy-Smith America Invents Act. As under the previous Patent Act, an invention is not novel, and therefore cannot be patented, if it has been in public use, on sale, described in a printed publication, or already patented. The America Invents Act, however, also prevents from patenting inventions “otherwise available to the public.” The Act does not define the term, leaving unanswered questions of what the drafters intended the new category to capture, and whether it truly encompasses any new sources of information. Drawing insights from the development of the retained categories of “prior art,” the Act’s legislative history, and the apparent policy behind the new category, Ingham offers a proposal for interpreting “otherwise available to the public” that would allow the Patent and Trademark Office and the courts to capture unanticipated technologies and new norms of disseminating information in the novelty analysis.

Laura Kaplan, Note, One Merger, Two Agencies: Dual Review in the Breakdown of the AT&T/T-Mobile Merger and a Proposal for Reform

In her Note, One Merger, Two Agencies: Dual Review in the Breakdown of the AT&T/T-Mobile Merger and A Proposal for Reform, Laura Kaplan uses the AT&T/T-Mobile merger, which was proposed and eventually abandoned in 2011, to illustrate problems unique to telecommunications merger review. Mergers in most industries are subject only to antitrust review by the U.S. Department of Justice (DOJ). Telecommunications mergers, however, are also subject to review by the Federal Communications Commission (FCC) under its flexible public interest standard. This system of dual review causes delay, redundancy, and a perversion of antitrust and telecommunications law. In her Note, Kaplan demonstrates how dual review altered the DOJ’s typical burden structure in its attempt to block the AT&T/T-Mobile merger. Because the FCC’s review operated concurrently with that of the DOJ, the DOJ was relieved of its normal obligation to prove its case at a preliminary injunction hearing. Kaplan concludes by presenting a proposal for reform to the FCC’s review that would solve this preliminary injunction problem, arguing for a significant limitation in scope and the imposition of a strict time limit.

Lavinia Weizel, Note, The Process That Is Due: Preponderance of the Evidence as the Standard of Proof in University Adjudications of Student-on-Student Sexual Assault Complaints

In her Note, The Process That Is Due: Preponderance of the Evidence as the Standard of Proof in University Adjudications of Student-on-Student Sexual Assault Complaints, Lavinia Weizel examines the due process rights of public school students in the high-stakes context of sexual violence on campus. Under Title IX, the Department of Education Office for Civil Rights (OCR) has promulgated regulations to ensure that schools mitigate the harmful effects of student sexual violence through a response that is both “prompt” and “equitable.” In a recent “Dear Colleague Letter” issued to all colleges and universities that receive federal funds, OCR clarified one component of an “equitable” response as schools’ mandatory use of the “preponderance of the evidence” standard of proof in campus adjudications of student-on-student sexual assault. Commentators responded that public schools’ use of the preponderance of the evidence standard, rather than the higher standard of clear and convincing evidence, would violate accused students’ due process rights under the Fourteenth Amendment. Through an application of the Supreme Court’s Mathews v. Eldridge procedural due process balancing test, Weizel demonstrates that the preponderance of the evidence standard is in fact adequate to safeguard accused students’ due process rights in campus sexual assault adjudications. Thus Weizel asserts that public schools may rest assured that compliance with the preponderance of the evidence requirement under Title IX is reconcilable with the Due Process Clause of the Fourteenth Amendment.

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