Boston College law review. Boston College. Law School最新文献

{"title":"Criminal Doctrines of Faith","authors":"D. Jaros","doi":"10.2139/SSRN.3126451","DOIUrl":"https://doi.org/10.2139/SSRN.3126451","url":null,"abstract":"Decisions like Miranda v. Arizona helped popularize a conception of the courts as a protector of criminal defendants and a bulwark against overly aggressive law enforcement. But from arrest through trial, the Court has fashioned criminal constitutional procedure with a deep and abiding faith in the motivations of criminal justice system actors. Even decisions that vindicate individual constitutional rights at the expense of police and prosecutorial power are shaped by the Court’s fundamental trust in those same actors. They establish, in essence, “Criminal Doctrines of Faith.” Criminal Doctrines of Faith pervade each stage of the criminal process — from cases that govern the pursuit of suspects and searches of homes to the disclosure of exculpatory evidence and the defendant’s capacity to waive a jury trial. This faith in law enforcement takes several forms. Some decisions reflect a simple faith in police and prosecutors’ character, while others, a faith in the institutions in which they work or in the courts’ ability to identify and deter misconduct. Recent high-profile prosecutions of police officers have highlighted and raised new questions about how much criminal procedure should rest on faith. In such cases, trusted government actors, both police and prosecutors, have attacked the integrity of a criminal process ostensibly designed to control their own behavior. Using the trials of the Baltimore police officers charged in the death of Freddie Gray as a lens, this Article highlights how the Supreme Court’s faith in police and prosecutors raises profound questions about the strength of these doctrines, the importance of more skeptical and diverse viewpoints on courts, and the viability of court-led regulation of law enforcement actors.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"2203"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument","authors":"Tonja Jacobi, K. Rozema","doi":"10.2139/SSRN.3039105","DOIUrl":"https://doi.org/10.2139/SSRN.3039105","url":null,"abstract":"This Article asks whether observable conflicts between judges in a case—interruptions between Supreme Court justices during oral arguments—are associated with future breakdowns in voting agreement among the judges in the case. To do so, we built a dataset containing justice-to-justice interruptions in cases between 1960 to 2015, and employ a framework for measuring case outcomes that treats the outcomes as a set of agreements and disagreements between pairs of justices. We find that on average a judicial pair is 7 percent less likely to vote together in a case for each interruption that occurs in the case between the judicial pair in the oral argument. While a conflict between judges that leads to both interruptions and a breakdown in voting of the coalition is one possible explanation of the finding, it is not the only; an interruption could instead just reflect something about cases that are more prone to disagreement or something about the way the interrupting justice views the case. We set out an empirical strategy that isolates the conflict explanation from these and other possible explanations and find that the conflict inherent in interruptions explains over half of the relationship between interruptions and disagreement.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"2259"},"PeriodicalIF":0.0,"publicationDate":"2017-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41851436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Admissibility of Sampling Evidence to Prove Individual Damages in Class Actions","authors":"Hillel J. Bavli, John Kenneth Felter","doi":"10.2139/SSRN.2937962","DOIUrl":"https://doi.org/10.2139/SSRN.2937962","url":null,"abstract":"The 2016 Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo revived the use of “representative” or sampling evidence in class actions. Federal courts are now more receptive to class plaintiffs’ efforts to prove classwide liability and, occasionally, aggregate damages, with sampling evidence. However, federal courts still routinely deny motions for class certification because they find that calculations of class members’ individual damages defeat the predominance prerequisite of Rule 23(b)(3). As a result, meritorious classwide claims founder. In this paper, we combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the Tyson decision while satisfying Daubert, the standards of Federal Rule of Evidence 702, and the prerequisites for Rule 23(b)(3) classes. We develop a method and derive a threshold to determine whether class damages claims are sufficiently homogeneous to justify the admissibility of sampling evidence to prove individual damages. Relying on Daubert and its progeny, as well as other well-recognized authority, we argue that accuracy is an appropriate standard for evidentiary reliability. Then, using generally accepted statistical methods and standards, we show that, when judgment variability exceeds claim variability (terms we define), sampling evidence improves accuracy and evidentiary reliability and is, therefore, admissible in Rule 23(b)(3) class certification proceedings. We also recommend several procedures to evaluate whether damages claims of a putative class satisfy the derived threshold. We conclude that our proposed method to prove individual damages achieves the Supreme Court’s stated goals of Rule 23(b)(3) class actions, “economies of time, effort, and expense” and the promotion of “uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.”","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"655"},"PeriodicalIF":0.0,"publicationDate":"2017-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68438469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Federal Equity Power","authors":"Michael T. Morley","doi":"10.2139/SSRN.2924107","DOIUrl":"https://doi.org/10.2139/SSRN.2924107","url":null,"abstract":"Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law's text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"59 1","pages":"217"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2924107","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43381723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Pantomime of Privacy: Terrorism and Investigative Powers in German Constitutional Law","authors":"Russell A. Miller","doi":"10.2139/SSRN.2920115","DOIUrl":"https://doi.org/10.2139/SSRN.2920115","url":null,"abstract":"Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German constitution (Basic Law) provides explicit textual protections that America’s 18th Century constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Article 1 of the Basic Law) and the free development of one’s personality (Article 2 of the Basic Law). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well-deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely-tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this article I argue that this adds up to a mere pantomime of privacy – a privacy of precise data retention and deletion timelines, for example – but not the robust “right to be let alone” that contemporary privacy advocates demand.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"1545"},"PeriodicalIF":0.0,"publicationDate":"2017-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2920115","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44152442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Symmetry Principle","authors":"Bradley A. Areheart","doi":"10.2139/SSRN.2837939","DOIUrl":"https://doi.org/10.2139/SSRN.2837939","url":null,"abstract":"Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths — while minimizing weaknesses — from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"1085"},"PeriodicalIF":0.0,"publicationDate":"2016-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68375090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rape Law Gatekeeping","authors":"Corey Rayburn Yung","doi":"10.2139/SSRN.2742855","DOIUrl":"https://doi.org/10.2139/SSRN.2742855","url":null,"abstract":"Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the widespread conventional wisdom among academics and activists that reforming evidentiary rules and consent standards would trickle-down to police decisions has proven unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to failures of policing, tinkering with rules and statutes is likely to yield little progress. Consequently, reform efforts must prioritize fixing the most significant bottleneck in rape cases: police. Several such legal and policy changes are incorporated into a model statute designed to ameliorate the widespread, ongoing problems associated with police gatekeeping.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"205"},"PeriodicalIF":0.0,"publicationDate":"2016-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Decoupling Vaccine Laws","authors":"Dorit R. Reiss","doi":"10.2139/SSRN.2798394","DOIUrl":"https://doi.org/10.2139/SSRN.2798394","url":null,"abstract":"When a parent decides not to vaccinate, that parent is deciding to leave the child at risk of preventable disease - a much larger risk than the small risk of vaccine injury. Arguably, the law has some tools to protect the child from that decision, including family law court decisions, injunctions in cases of high risk, and tort or criminal liability if a child is harmed.This short essay explains that exemptions from school immunization requirements do not prevent the law from protecting a child against parental decisions not to vaccinate her, or compensating a child harmed by non-vaccinating. School immunization requirements, however, may be a barrier to criminal liability for non-vaccinating.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2016-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68333154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employer Liability for Non-Employee Discrimination","authors":"Dallan F. Flake","doi":"10.2139/SSRN.2780677","DOIUrl":"https://doi.org/10.2139/SSRN.2780677","url":null,"abstract":"IntroductionDespite the fact that Title VII of the Civil Rights Act of 1964 expressly forbids only employers (and, by extension, employees) from discriminating against employees,1 courts have long interpreted the statute as also prohibit ing employers from allowing third parties to discriminate against employees.2 Employers who fail to adequately protect their employees from nonemployee discrimination face serious repercussions. For example, a Kansas City-area jury recently awarded over $2.5 million to an AutoZone cashier, who claimed the auto parts retailer failed to take action after customers inappropriately touched her, asked her about her \"cup size,\" and made sexual advances toward her on multiple occasions.3 Likewise, retail supermarket chain Fred Meyer paid out nearly half a million dollars to settle a group of female employees' claims that a customer \"continually made lewd comments to [them], in addition to grabbing [them], cornering them, touching their breasts, and pulling one employee onto his lap.\"4 Non-employee discrimination is not limited to incidents of harassment. For instance, Michigan-based Hurley Medical Center recently paid almost $200,000 to three black nurses who were prohibited from caring for a white baby after the baby's father showed a hospital supervisor his swastika tattoo and insisted that no black nurses treat his child.5Employer liability for non-employee discrimination dates back at least four decades.6 Yet despite its persistence, this form of discrimination has received little attention from courts,7 the Equal Employment Opportunity Commission (\"EEOC\"),8 and legal scholars.9 This dearth of attention is not necessarily surprising, given the tendency in the law to treat discrimination by non-employees and discrimination by employees as one and the same. Indeed, courts have long assumed-without much analysis-that employers should be equally liable for discrimination that comes from employees and non-employees.10 Consequently, there has been little incentive to explore how these forms of discrimination differ and whether such differences call for different treatment under the law.11This Article seeks to shed much-needed light on non-employee discrimination. I argue that discrimination by non-employees differs from discrimination committed by employees in ways that matter for employer-liability purposes. The most glaring difference is that employers typically cannot exercise the same level of control over non-employees as they do over their own employees when it comes to employment discrimination.12 Employers have a variety of tools at their disposal to prevent, detect, and address employee-on-employee discrimination. Indeed, many employers provide annual antidiscrimination training to employees, establish strict handbook policies and workplace rules against discrimination, and implement mandatory discrimination-reporting requirements. They also have the power to punish employees who violate such policies, whether th","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"58 1","pages":"1169"},"PeriodicalIF":0.0,"publicationDate":"2016-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2780677","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68316764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Second Bite at the Apple: Federal Courts' Authority to Compel Technical Assistance to Government Agents in Accessing Encrypted Smartphone Data, Under the All Writs Act","authors":"John L. Potapchuk","doi":"10.2139/SSRN.2768374","DOIUrl":"https://doi.org/10.2139/SSRN.2768374","url":null,"abstract":"The analogy is simple: imagine an unpickable and unbreakable lock. A safe-deposit box, or a house with no physical way in other than a unique passcode known only to the owner. Absolute security. This was generally the ideal behind Apple, Inc.’s most recent stride in mobile security, which dramatically widened the breadth of data receiving full-disk encryption by default on iPhones with the introduction of iOS 8 in 2014. The result for law enforcement has been hundreds of device search warrants unable to be executed. The heated public debate that has followed, which has largely focused on the nefarious potential of the uncompromising privacy this newly utilized encryption provides, has intensified amidst continuing efforts by government agents to obtain aid from the federal judiciary by means of orders under the All Writs Act. Although Apple had regularly complied with such orders directing the company to assist government agents in accessing locked iPhones since as early as 2008, Apple changed its position in October 2015 and will no longer acquiesce. This Note provides a detailed discussion of the underlying legal implications surrounding the so-called public standoff between Apple and the FBI, with particular attention to the propriety of the decryption assistance orders sought by the government under the All Writs Act. It further provides a detailed discussion of In re Order Requiring Apple, Inc. Assist in Execution of Search Warrant, an ongoing matter in the U.S. District Court for the Eastern District of New York, where Apple mounted its first opposition to a decryption assistance order under the All Writs Act. It further argues that the federal courts are authorized to compel third party assistance under the statute in certain situations, however, the statutes authority will eventually become obsolete as advancing technology will soon render such orders overly burdensome. It finally offers an expansion of the Communication Assistance to Law Enforcement Act (“CALEA”) as one potential solution to the threat that impenetrable device encryption poses to the functioning of the American criminal justice system.","PeriodicalId":80721,"journal":{"name":"Boston College law review. Boston College. Law School","volume":"57 1","pages":"1403"},"PeriodicalIF":0.0,"publicationDate":"2016-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2768374","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68306575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}