The November issue of Boston College Law Review is now available. The issue features four articles by outside authors as well as four student notes. Summaries of the eight pieces can be found below. The full texts are also听available on the 51茶馆LR website.
by Professors Shmuel I. Becher & Uri Benoliel
In their Article, Professors Becher and Benoliel analyze the readability of the sign-in-wrap contract, a prevalent type of agreement that consumers accept when signing up for popular websites like Facebook and Amazon. They apply well-established linguistic readability tests to the five hundred most popular websites in the U.S. that use such sign-in-wrap contracts. Their study reveals that the average readability level of these agreements far exceeds a level that would be accessible to the general public. Professors Becher and Benoliel explore the implications of this revelation on the design of consumer contract law, focusing on the one-sided application of the duty to read doctrine, which holds consumers accountable for reading contracts but does not generally impose a duty on suppliers to draft readable contracts.听
肠测听by Professor Pamela Foohey
Professor Foohey鈥檚 Article explores how societal perceptions of consumer bankruptcy鈥檚 procedures impact the goals of the system. Professor Foohey crafts a theory of consumer bankruptcy鈥檚 procedural deficiencies by combining procedural justice and related research with what is known about those who file bankruptcy. She argues that if consumer bankruptcy is indeed procedurally bankrupt, then the 鈥渇resh start鈥� promised by the bankruptcy system may actually impede people鈥檚 return to their communities and to the credit economy. In response, Professor Foohey proposes two changes鈥攐ne modest and one more drastic鈥攖o the consumer bankruptcy process to enhance perceptions of bankruptcy鈥檚 procedural justice and the legitimacy of the system.
听by Professor Alix Rogers
In her Article, Professor Rogers discusses the historical treatment and current legal status of Native American remains. Professor Rogers analyzes Native American remains under the Native American Graves Protection and Repatriation Act of 1990 (鈥淣AGPRA鈥�) and the status of these remains as familial and tribal property. Contrasting this history and treatment with treatment of non-Native American remains, Professor Rogers argues that the communal property approach embodied by the Act enables Native Americans to protect their dead more effectively than any other American group and represents an intriguing pathway for human biological materials regulation reform beyond Native American remains.
听by Professor Camilla A. Hrdy
In her Article, Professor Hrdy discusses the paradox that employers are encouraged to communicate trade secrets to employees, but this information loses protection if it becomes part of those employees鈥� unprotectable general knowledge, skill, and experience. Her Article traces the roots of the general knowledge, skill, and experience doctrine in the common law and shows how it has been incorporated, though never actually codified, in statutes, including the Defend Trade Secrets Act of 2016. Professor Hrdy argues that the general knowledge, skill, and experience exclusion was intended to preserve an employee鈥檚 right to improve her skills on the job and thereafter, transfer those skills to a different job or business endeavor. Ultimately, Professor Hrdy presents a framework for courts to use when applying the Exclusion.
听by Abigail W. Balfour
In her Note, Abby Balfour looks at the most recent Congressional attempt to curb sex trafficking, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). Congress first criminalized the act of sex trafficking in 2000 and has since extended culpability to a growing array of facilitators. But the Internet has persisted as its biggest participant, giving traffickers the platform to advertise their victims under the guise of consensual personal services or escort ads. FOSTA extends criminal and civil liability to internet service providers that knowingly post these advertisements. Alleging that it infringes upon First Amendment freedoms by potentially criminalizing otherwise legal speech, the tech community has ardently opposed the bill. Abby argues that FOSTA correctly addresses sex trafficking in today鈥檚 Internet era and that its core is constitutionally sound because the First Amendment does not protect speech that furthers criminal conduct.听
听by John E. Foster
John Foster鈥檚 Note examines a novel addition in the 鈥減rogressive prosecutor鈥� playbook鈥攏on-prosecution of certain nonviolent offenses. Enacted through internal procedure of the Suffolk County District Attorney鈥檚 Office, the non-prosecution policy faces legal challenge as a violation of separation of powers, victims鈥� rights laws, and Massachusetts ethics rules. As a normative matter, scholars and law enforcement officials debate the impact that the policy will have on incarceration, public health, local neighborhoods, and the rule of law. Jack argues that the expansive reach of prosecutorial discretion will continue to protect the non-prosecution policy from legal challenge so long as its consequences remain palatable to institutional stakeholders and the public.
听by Jillian R. Friedmann
Jillian Friedmann鈥檚 Note analyzes public-school dress codes targeting female students in the context of the Equal Protection Clause. In particular, Jillian examines the relevant case law as it has developed from the 1970s to present day in order to determine when a public school鈥檚 proffered justification is acceptable. She concludes that many of the earlier cases would be decided differently in light of subsequent Supreme Court precedent. Ultimately, Jillian argues that the commonly held notion that girls鈥� clothing can be distracting may no longer be a sufficient justification to defeat an Equal Protection challenge and that a more genuine justification is needed instead.
听by Ezra D. Dunkle-Polier
Ezra Dunkle-Polier鈥檚 Note examines the impact of reporters鈥� shield laws on social media during an era of hostility toward press freedoms. After tracking the history of anonymous reporting, Ezra discusses the development of the reporter鈥檚 privilege, and considers how to ensure protections for modern journalists. Ultimately, Ezra argues that to best protect digital journalists and social media users, Congress should enact a federal reporter鈥檚 shield that explicitly considers the revolutionary advancements in internet communication.听