BCLR Releases Vol. LIII No. 5

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

•  Sarah B. Lawsky, How Tax Models Work

Although legal scholars are increasingly reliant on conceptual models to construct policy arguments, there has been little to no reflection in legal scholarship on what models mean, and how they should be used. In How Tax Models Work, Sarah B. Lawsky, Professor of Law at the University of California, Irvine, School of Law, addresses this void. Analyzing the use of economic modeling in tax scholarship, Lawsky investigates how models are used in legal publications. The use of models must fall somewhere between two extremes. At one extreme, models are used to make real-world recommendations without any evaluation of the model’s underlying assumptions. At the other, models are rejected for being too unrealistic. In this Article, Lawsky argues that models used in legal scholarship must describe credible hypothetical worlds, from which we can extrapolate to inform decisions about the real world. Although models cannot provide certainty about what the law should be, they are important tools that allow us to refine legal arguments and shape conversations about legal policy.

•  Lea Shepard, Toward a Stronger Financial History Antidiscrimination Norm

Currently standing at the intersection of consumer protection and antidiscrimination law is employers’ use of applicants’ credit reports and financial histories during the hiring process. In her article, Toward a Stronger Financial History Antidiscrimination Norm, Lea Shepard, Assistant Professor of Law at Loyola University Chicago School of Law, argues for greater legislative efforts to curtail discriminatory practices by employers. Employers and licensing organizations have used credit scores and financial histories because they view these tools as predicting relevant character traits and as being both necessary and helpful in deterring debt default. Shepard contends, however, that these uses of financial histories are misguided. Through a novel application of behavioral economics, Shepard suggests that despite difficult conceptual distinctions between consumer debtors and traditional Title VII categories, an adverse financial situation is more immutable than neoclassical economists have been willing to concede; this makes employees subject to pre-hiring credit checks at great risk of facing discrimination. Shepard suggests that these observations lend support for a stronger financial history antidiscrimination norm.

•  Julia L. Chen, Note, Restoring Constitutional Balance: Accommodating the Evolution of War

In 2011, President Barack Obama sent U.S. forces into action in Libya, sparking a heated debate by acting without congressional approval. In response to congressional outcry, the Obama Administration claimed that the action in Libya was outside the scope of the War Powers Resolution of 1973 and therefore did not require prior congressional approval. In her Note, Restoring Constitutional Balance: Accommodating the Evolution of War, Julia L. Chen explores the history of war powers and its split between the executive and legislative branches. The evolution of warfare, which involves the increasing use of civilians and unmanned weapons, puts warfare outside the scope of current law. Grounding her argument in the drafting debates surrounding passage of the U.S. Constitution and the War Powers Resolution of 1973, Chen posits that there should be a congressional check on presidential war powers and, therefore, new war powers legislation is needed to accommodate the realities of modern warfare.

•  Jennifer Kent, Note, Lien on Me: The Survival of Security Interests in Revenues From the Sale of an FCC License

A debtor can give a valid security interest in collateral only when, among other things, the debtor has rights in that collateral. The bankruptcy consequences of this rule become complicated when a holder of a Federal Communications Commission (FCC) license wishes to grant a security interest in the proceeds it may receive from selling that license in the future. A sale cannot occur, and thus those proceeds cannot exist, until there is (1) a contract for sale and (2) FCC approval of the sale. Accordingly, the question of whether a debtor has rights in the sale proceeds, before either condition of sale has occurred, has drastic implications for the telecommunications industry. In her Note, Lien on Me: The Survival of Security Interests in Revenues From the Sale of an FCC License, Jennifer Kent analyzes several other industries with similar contingent rights to payment to argue that the contingencies need not occur for the debtor to have a right in the proceeds from a sale of its FCC license—the right arises upon acquisition of the license itself.

•  Michael Palmisciano, Note, Going Dutch: The Effects of Domestic Restriction and Foreign Acceptance of Class Litigation on American Securities Fraud Plaintiffs

Over the past decade, Congress and the U.S. Supreme Court have significantly restricted the utility of the class action, leaving many American plaintiffs who have legitimate claims without recourse in the United States. Simultaneously, the European Union and its Member States have considered and implemented new mechanisms to facilitate the resolution of mass claims. In Europe, the Netherlands has led the way in adopting a particularly useful aggregate litigation system. In his Note, Going Dutch: The Effects of Domestic Restriction and Foreign Acceptance of Class Litigation on American Securities Fraud Plaintiffs, Michael Palmisciano examines the intersection of these two recent trends in aggregate litigation. As a result of these trends, Palmisciano argues that Americans with securities fraud claims, who find themselves shut out of U.S. courts, should seek redress in the Netherlands under the Dutch Settlement Act. Palmisciano contends that American courts are likely to give res judicata effect to such judgments, and, barring a preemptive trans-European system of collective redress, the Netherlands is a viable alternative to U.S. federal courts for resolving securities fraud claims.

•  James J. Schneider, Note, Defeating the Terminator: How Remastered Albums May Help Record Companies Avoid Copyright Termination

There is a time bomb ticking, and it is making record companies nervous. Beginning in 2013, recording artists can begin terminating the copyright grants they made to record companies 35 years prior, taking full control of the valuable copyrights in their songs and albums and leaving the record companies with nothing. In his Note, Defeating the Terminator: How Remastered Albums May Help Record Companies Avoid Copyright Termination, James J. Schneider explores the derivative works exception to this termination right, which allows record companies to continue to utilize derivative works they created during the original copyright grant. Schneider argues that remastered albums, particularly those remastered under the “loudness wars” rationale, fit within the legal definition of a “derivative work.” Thus, record companies can continue to utilize these remastered albums even after artists terminate the original recordings, resulting in a strange market where two similar sounding records are sold by two different economic actors. This outcome, Schneider argues, best effectuates the legislative intent behind the termination provision and the derivative works exception by essentially forcing the artist and record label to renegotiate, with the artist now having more leverage and a better understanding of the value of his or her work.

•  Claire Specht, Note, Text Message Service of Process—No LOL Matter: Does Text Message Service of Process Comport with Due Process?

Service of process remains one of the few paper holdouts in U.S. courts. Yet, technological advancements, such as text messages, provide an economical and efficient means of effecting service of process. In her Note, Text Message Service of Process—No LOL Matter: Does Text Message Service of Process Comport with Due Process?, Claire Specht examines the constitutionality of effecting service of process by text message. In 1950 in Mullane v. Central Hanover Bank & Trust Co., the U.S. Supreme Court stated that service of process must be reasonably calculated to apprise the defendant of the proceedings. Specht argues that given the continued constitutionality of service of process by publication and that text messages directly target an individual, text message of service of process is not per se unconstitutional. Nevertheless, Specht counsels against the use of text message service of process because of the current technological limitations of text messages. Assuming that those limitations are ultimately resolved, Specht proposes a legal framework for permitting text message service of process.

•  Allison Stoddart, Note, Missing After Mensing: A Remedy for Generic Drug Consumers

Following the U.S. Supreme Court’s 2011 decision in PLIVA v. Mensing, generic drug consumers can no longer win failure-to-warn suits against generic drug manufacturers. The Court held that FDA regulations preempt failure-to-warn claims because the regulations made it impossible for a generic drug manufacturer unilaterally to enhance its warning label. The FDA regulations do not, however, preempt brand name drug consumers’ claims against brand name drug manufacturers. The unfortunate result is that consumers stand in starkly different positions depending on whether they consumed a brand name or a generic drug. In her Note, Missing After Mensing: A Remedy for Generic Drug Consumers, Allison Stoddart argues that the FDA should amend its regulations to allow all manufacturers unilaterally to enhance their warning labels. By doing so, both generic and brand name consumers could recover from the manufacturer that produced the inadequately-labeled drug that was consumed.

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