BCLR Releases Vol. LV No. 1

The Boston College Law Review is pleased to announce the publication of our January 2014 issue:

Steven L. Schwarcz, Rollover Risk: Ideating a U.S. Debt Default

In his Article, Rollover Risk: Ideating a U.S. Debt Default, Steven L. Schwarcz, Stanley A. Star Professor of Law & Business at Duke University School of Law, analyzes the economic and legal consequences of a possible U.S. debt default. Special attention is placed on the issue of rollover risk, the risk created when the U.S. government continues to sell short-term debt to finance its long-term debt obligations. After discussing the systemic consequences of a U.S. debt default and the myriad of legal issues arising from such an event, the Article goes on to propose potential economic and legal avenues for avoiding a default and ways to mitigate its damage.

 

Dan T. Coenen, The Filibuster and the Framing: Why the Cloture Rule Is Unconstitutional and What to Do About It

How the Senate handles filibusters is a highly contentious issue that has had an enormous impact on the Senate’s ability to act. In The Filibuster and the Framing: Why the Cloture Rule Is Unconstitutional and What to Do About It, Dan T. Coenen, University Professor & Harmon W. Caldwell Chair in Constitutional Law at the University of Georgia Law School, examines the constitutional text and the historical context of the Framing to argue for a constitutional norm of majority decision making. He shows that the modern cloture rule—which requires sixty votes to end debate on legislation and confirmation Supreme Court nominees—defies this constitutional requirement because, rather than merely regulating debate, it effectively requires a supermajority for Senate action. Coenen contrasts historical filibuster practices with the Senate’s current usage, highlighting the rise of the “steath filibuster,” a practice that produces no floor debate at all. As a constitutional remedy, Coenen proposes alternatives that would preserve the Senate’s tradition of extended deliberation while ensuring a simple majority of Senators could ultimately make decisions for the body.

 

Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms

In recent years, many have lauded Big Data’s potential to increase productivity, innovation, and efficiency via its collection and predictive analysis of large data sets. These processes, however, have created new challenges for privacy advocates. In Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, Kate Crawford & Jason Schultz explain how Big Data may harm individuals and why current privacy rights inadequately address these risks. In response, Crawford & Schultz explore the historical role of due process in the Anglo-American legal system and propose a novel approach to Big Data’s potential harms: procedural data due process. Based on this history and prior scholarship on due process’s application to administrative computer systems, the authors argue that individuals affected by Big Data should have rights similar to those afforded by procedural due process—notice and an opportunity to be heard—in regard to the use of their personal data by others. Accordingly, Crawford & Schultz outline a regulatory framework that may provide such rights in the context of Big Data.

 

Zachary J. Gubler, Experimental Rules

Although federal administrative agencies form policy under conditions of extreme uncertainty, they overwhelmingly favor permanent final rules. In his Article, Experimental Rules, Zachary J. Gubler argues instead that agencies should utilize multi-stage “experimental” rules that terminate automatically after a sunset period and are designed to generate data during the initial period that can help establish ideal long-term policy. To encourage this policy experimentation, Gubler proposes having courts apply greater deference to experimental rules during their initial phase. The approach would help nudge agencies toward adopting experimental rules, thereby avoiding the possibility that sub-optimal policies become entrenched in permanent rules. Gubler’s approach would also preserve rules that might otherwise be vacated by courts at least long enough to generate the necessary learning to determine whether they should be implemented on a permanent basis.

 

Zoë Robinson, What Is a “Religious Institution”?

The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC represented a jurisprudential earthquake with regard to how we interpret the Religion Clauses in the First Amendment. In Hosanna-Tabor, the Supreme Court articulated for the first time that the First Amendment accords religious institutions with absolute categorical rights of private ordering, meaning that secular courts and governments may not interfere with a religious institution’s internal governance. But in doing so, the Court did not address what institutions are afford these absolute rights. In What Is a “Religious Institution”?, Zoë Robinson proposes a framework for determining which institutions constitute religious institutions for First Amendment purposes. Robinson’s framework is functional and turns on whether an institution would effectively use constitutional protections for the benefit of society as a whole. In so doing, the proposed framework focuses on institutions’ purposes, examining whether a given institution’s purpose includes (1) the protection of individual conscience, (2) the protection of group rights, and (3) the provision of desirable societal structures.

 

Christopher J. Cifrino, Note, Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds

In his Note, Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds, Christopher J. Cifrino explores the traditional application of property rights to online virtual worlds such as Second Life and World of Warcraft. Currently, the rights of virtual world users are defined by contracts, but many commentators have argued for legal recognition of property rights in virtual items. After examining three traditional justifications for property rights—Lockean labor theory, personality theory, and utilitarianism—Cifrino finds fundamental flaws in applying each theory to virtual property. Moreover, because users demand virtual worlds with differing levels of virtual property protection, a one-size-fits-all traditional property law regime will doom many virtual worlds. Ultimately, Cifrino argues, only contract law offers sufficient flexibility for the full spectrum of virtual worlds to flourish.

 

Sarah A. Kellogg, Note, Just Grow Up Already: The Diminished Culpability of Juvenile Gang Members After Miller v. Alabama

In her Note, Just Grow up Already: The Diminished Culpability of Juvenile Gang Members After Miller v. Alabama, Sarah A. Kellogg looks at the impact of the Supreme Court’s 2012 decision in Miller v. Alabama on the Court’s Eighth Amendment analysis. In Miller, the Court held that mandatory life in prison without parole sentences for juveniles violates the Eight Amendment’s ban against cruel and unusual punishment. In doing so, the Court applied the Eighth Amendment analysis that is normally reserved only for review of capital sentences. The Court justified the extension of this analysis by highlighting developmental differences between juveniles and adults. Kellogg suggests that Miller’s framework should be applied to California’s gang enhancement statutes, which tack on lengthy sentence enhancements for crimes committed in conjunction with a gang, because the gang setting magnifies the developmental difference between juveniles and adults. Accordingly, Kellogg argues that these statutes might be constitutionally dubious when applied to juveniles.

 

Nathaniel Koslof, Note, Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles

Under what is known as the Cherry doctrine, a co-conspirator’s misconduct in making a witness unavailable can generally be imputed to another co-conspirator defendant to forfeit the latter’s Confrontation Clause rights. In his Note, Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles, Nathaniel Koslof examines whether the Supreme Court’s 2008 decision in Giles v. California has changed or altered the Cherry doctrine. In 2008, the Giles decision inserted a new element of intent into the forfeiture analysis, which potentially limited the scope of forfeiture when witnesses are rendered unavailable by other members of the defendant’s criminal enterprise. Despite this new intent element, however, Koslof argues that the scope of the forfeiture by wrongdoing doctrine remains unchanged: so long as one co-conspirator possesses the intent to make a witness unavailable, this intent can be imputed to the defendant through accepted concepts of conspiratorial liability, thus allowing the Cherry doctrine to live on.

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