BCLR Releases Vol. LIV No. 2

Boston College Law Review is pleased to announce the publication of our March 2013 issue.

•  Jeremy Waldron, Separation of Powers in Thought and Practice?

The principle of separation of powers is one of the most lauded and revered aspects of the U.S. constitutional system. But too often, political scientists, lawyers, and political philosophers merely assume the importance of this principle instead of articulating why it is important. In his essay, Separation of Powers in Thought and Practice?, a modified version of the Clough Distinguished Lecture in Jurisprudence he delivered at Boston College in September 2012, Jeremy Waldron, University Professor and Professor of Law at New York University School of Law, challenges us to think about the “pure” principle of separation of powers, separated from other constitutional principles such as that of checks and balances and division of power. Drawing on the work of M.J.C. Vile and John Manning, Waldron guides the reader through the philosophies of some of the most important political thinkers that drove the ideas behind the U.S. Constitution in search of the importance of the principle of separation of powers, distinct from the importance of other related constitutional principles. Challenging conventional clichés, Waldron argues that the separation of powers is tied closely with the rule of law, and that the principle’s importance is a matter of articulated governance.

•  Onnig H. Dombalagian, The Expressive Synergies of the Volcker Rule

In his Article, The Expressive Synergies of the Volcker Rule, Onnig H. Dombalagian, George Denègre Professor of Law at Tulane University Law School, argues for an implementation of the Volcker Rule that balances the statutory mandate of promoting the safety and soundness of the banking sector with the importance of banking affiliate dealers to provide liquidity in over-the-counter markets. The Rule, part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, restricts proprietary trading by insured institutions but provides exceptions to the Rule for market-making functions. Dombalagian draws on expressive literature as well as the history of banking regulation including both Glass-Steagall and Graham-Leach-Bliley to argue that the federal financial regulators should be granted broad discretion to implement the market-making exception to the Volcker Rule. He further argues that this discretion is essential to the success of the Volcker Rule because of the significant industry opposition to the implementation of the Rule.

•  Rosalie Berger Levinson, Wherefore Art Thou Romeo: Revitalizing Youngberg’s Protection of Liberty for the Civilly Committed

When the Supreme Court decided Youngberg v. Romeo thirty years ago, it recognized that those who are involuntarily committed in a state institution enjoy a constitutionally protected liberty interest. This includes the right to reasonably safe conditions of confinement, freedom from unreasonable restraint, and minimally adequate training sufficient to ensure these interests. In Wherefore Art Thou Romeo: Revitalizing Youngberg’s Protection of Liberty for the Civilly Committed, Rosalie Berger Levinson, Phyllis and Richard Dusenberg Professor of Law at Valparaiso University School of Law, argues that Youngberg’s protection for the civilly committed needs to be revitalized. Lower courts have eroded the substantive due process rights recognized in Youngberg, largely because of two post-Youngberg Supreme Court decisions. Levinson argues that neither DeShaney v. Winnebago County Department of Social Services nor County of Sacramento v. Lewis should be interpreted to limit the fundamental liberty interests recognized in Youngberg. Instead, government officials who make decisions that constitute a substantial departure from professional judgment should be open to a substantive due process claim, and misconduct by non-professionals should be judged by an objective deliberate indifference test.

•  Janai S. Nelson, The Causal Context of Disparate Vote Denial

In The Causal Context of Disparate Vote Denial, Janai S. Nelson, Associate Professor at St. John’s University School of Law, discusses how Section 2 of the Voting Rights Act of 1965 (“VRA”) should be applied to vote denial practices that have a disparate impact on minority political participation. In the context of the VRA, disparate impact theory measures the effect of a particular election law or practice on racial minorities as compared to non-minority groups. Nelson argues that the federal judiciary’s narrowing construction of disparate impact claims has weakened the force of vote denial challenges brought under Section 2. In response, Nelson proposes a new “causal context” test for vote denial that is anchored in the “core values” of the VRA, as demonstrated by Section 2’s legislative history. Causal context analysis requires courts to take into account the causal context of statistical disparities associated with disparate vote denial. Accordingly, the causal context test accepts contextual evidence of racial discrimination such as implicit bias, without requiring proof of discriminatory intent. In this timely article, Nelson argues that the causal context test is both consistent with the historical purpose of the VRA and applicable to many forms of modern vote denial, including voter identification laws, voter purges, and early voting restrictions.

•  Manuel A. Utset, Fraudulent Corporate Signals: Conduct as Securities Fraud

One can argue that corporations are not people, but one cannot argue that corporations can communicate like people. Paying dividends, repurchasing shares, underpricing an IPO, pledging collateral, and borrowing using short-term instead of long-term debt are all forms of corporate communications. These communications, known as “corporate signals,” tell investors certain things about a company’s operations and current financial position, and about the manager’s confidence of the company’s prospects. Due to the increasing complexity of public corporations and the changes in federal securities laws after the series of financial scandals over the past decade, corporate signals have become more prevalent in the marketplace—for better or for worse. In Fraudulent Corporate Signals: Conduct as Securities Fraud, Manuel A. Utset, Charles W. Ehrhardt Professor at Florida State University College of Law, provides the first comprehensive analysis of the relationship between corporate signals and securities fraud. Utset illustrates the deep connection between the use of corporate signals (both truthful and deceptive) and recent changes in securities laws. Furthermore, he identifies significant social costs associated with corporate signaling, which commentators and policymakers have overlooked. With these social costs in mind, Utset provides a normative account of how a lawmaker would design anti-fraud provisions under the securities laws to reduce total fraud, and not to allow deceptive corporate signals to simply replace deceptive written and oral statements.

•  Nikolas Abel, Note, United States v. Mehanna, the First Amendment, and Material Support in the War on Terror

In his Note, United States v. Mehanna, the First Amendment, and Material Support in the War on Terror, Nikolas Abel examines Tarek Mehanna’s conviction on charges of material support for terrorism by the U.S. District Court for the District of Massachusetts. Mehanna was convicted of providing material support for terrorism not because he posed an immediate threat, but rather because he translated al Qaeda propaganda into English. Abel argues that the 2010 U.S. Supreme Court case Holder v. Humanitarian Law Project provides inadequate guidance for when speech made in support of terror is punishable, and that the Court’s deference to the political branches will have a deleterious impact on free speech rights. Abel further argues that speech like Mehanna’s should be evaluated using an incitement standard developed specifically for material support cases. This proposed standard will allow courts to strike a proper balance between free speech rights and national security.

•  Molly Clayton, Note, Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases

In her Note, Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases, Molly Clayton analyzes the current use of executive clemency in the death penalty context. Despite the rising number of death sentences and executions since the U.S. Supreme Court held the death penalty constitutional in Gregg v. Georgia in 1976, the use of executive clemency in capital cases has declined. Although the Supreme Court has determined that some minimal procedural safeguards apply in clemency proceedings, clemency remains a largely standardless procedure throughout the states. Lower courts have failed to require any significant procedural safeguards in the clemency process, calling the Supreme Court’s determination that clemency is the “fail-safe” of the criminal justice system into doubt. In her Note, Clayton suggests that states should enact both procedural requirements and substantive guidelines to ensure death row inmates receive due process in the executive clemency context.

•  David Gusella, Note, No Cilia Left Behind: Analyzing the Privacy Rights in Routinely Shed DNA Found at Crime Scenes

In his Note, No Cilia Left Behind: Analyzing the Privacy Rights in Routinely Shed DNA Found at Crime Scenes, David Gusella analyzes what privacy rights an individual has with respect to the information contained in his or her DNA. As genetic sequencing technology advances, the day in which extensive information about an individual can be uncovered from stray hair or other routinely shed genetic material is readily approaching. As this technology becomes more widely used, the current informational privacy jurisprudence is ill-equipped to protect individuals’ genetic privacy rights, especially in the face of countervailing governmental interests such as solving crimes (or potentially even administering cost-effective healthcare). Gusella argues for the creation of a rule for determining what kind of genetic information a government should be able to uncover without a warrant or ruling from a judicial officer. Gusella concludes that genetic information should be split into two categories, phenotypic and non-phenotypic information, and that only phenotypic information should be uncovered to the extent that a theoretical third-party observer would be able to uncover such information without having to sequence routinely shed DNA.

•  Alycia Kennedy, Note, Social Security Survivor Benefits: Why Congress Must Create a Uniform Standard of Eligibility for Posthumously Conceived Children

In her Note, Social Security Survivor Benefits: Why Congress Must Create a Uniform Standard of Eligibility for Posthumously Conceived Children, Alycia Kennedy examines the difficulties that posthumously conceived children encounter when applying for survivor benefits under the Social Security Act. Last term, in Astrue v. Capato, the U.S. Supreme Court upheld the Social Security Administration’s reading of the Act, which predicates eligibility for survivor benefits on the child’s ability to inherit from the deceased parent under state intestacy law. Because states have failed to promptly respond to the possibility of posthumous conception, Kennedy asserts that reliance on state law for the determination of federal benefits fails to adequately protect this special class of children, whose existence was mere science fiction when Congress passed the Act in 1935. Kennedy explores the reasons Congress originally deferred to the states for eligibility determinations, the nature of state intestacy laws, and the legislative history and purpose of the Act. She argues that, in light of those considerations, the fairest and most efficient solution is for Congress to update the Act to provide a uniform standard of eligibility for posthumously conceived applicants seeking survivor benefits.

•  Frederick Thide, Note, Judicial Policy Nullification of the Antitrust Sentencing Guidelines

In his Note, Judicial Policy Nullification of the Antitrust Sentencing Guideline, Frederick Thide analyzes whether there is a sustainable basis for judicial policy disagreement with the Antitrust Sentencing Guideline’s use of a proxy to measure economic harm. Although the U.S. Supreme Court’s transformational sentencing cases have returned significant discretion to sentencing judges, including the discretion to vary from the Federal Sentencing Guidelines on policy grounds, judicial discretion in sentencing is not unlimited. Judges are required by statute to impose sentences that are “sufficient, but not greater than necessary” to achieve the goals of sentencing, subject to appellate review for reasonableness. Thide proposes that appeals courts apply a sliding scale framework when reviewing policy-based variances from the Guidelines, subjecting a sentencing judge’s variance to greater scrutiny when it is based on the judge’s categorical disagreement with Guidelines policy. Finally, after evaluating the potential weaknesses of the Antitrust Guideline’s harm proxy, Thide argues that judicial discretion to vary from the proxy, appropriately cabined by appellate review, would contribute to the iterative, cooperative institutional effort to develop uniform and effective antitrust sentencing policies.

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