BCLR Electronic Supplement

On April 29, 2022, the U.S. Court of Appeals for the First Circuit in Moore v. British Airways PLC held that an ordinary passenger’s expectations determine whether the cause of a personal injury during international flight constitutes an “accident” under Article 17(1) of the Montreal Convention. In so doing, the First Circuit created a majority approach to the issue—adopting the standard previously put forth by the Eleventh Circuit and rejecting the Fifth Circuit’s reli-ance on industry standards. This Comment argues that the First Circuit correctly adopted the Eleventh Circuit’s approach because it more closely aligns with the primary goal of the Montreal Convention—protection of consumers’ economic interests over that of international air carriers.

Boston College Law Review

It Was an Accident! Determining the Appropriate Perspective to Assess Montreal Convention Personal Injury Claims

In 2021, in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the U.S. Court of Appeals for the Second Circuit held that artist Andy Warhol’s adaptation of a photograph depicting rock-and-roll star Prince was not a transformative fair use. In so holding, the Second Circuit declined to follow the Supreme Court’s instruction that courts must consider whether and to what extent the use is “transformative”— that is, contributes something novel, with an added purpose or changed character, varying the original work with a unique aesthetic, tenor, or implication. This Comment argues that the Second Circuit rightly narrowed the scope of transformativeness, restoring meaning to Congress’s prescribed balancing test and remedying an undue deprivation of property rights.

Ask Permission: The Second Circuit's Transformative Fair Use Inquiry

On April 8, 2022, the United States Court of Appeals for the Ninth Circuit, in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods L.L.C., held that a class in a Rule 23(b) class action could be certified with more than a de minimis number of uninjured class members, so long as a common question still predominated among the class. In doing so, it exacerbated a circuit split on the allowability of uninjured class members. Many observers have read the First, Seventh, and D.C. Circuits as suggesting a de minimis rule, allowing a small percentage of uninjured class members so long as there are not too many and there is some mechanism for determining who is injured. The Second, Third, and Fifth Circuits, meanwhile, have rejected the idea that a class can be certified with any number of uninjured plaintiffs. This Comment argues that the Ninth Circuit introduced confusion into the doctrine by ignoring the de minimis rule and instead suggesting that a class with more than a de minimis number of uninjured parties could recover. The Ninth Circuit’s method is less clear than that of the First, Seventh, and D.C. Circuits and it also fails to satisfy the worthy policy goal of keeping meritless suits from proceeding to the settlement stage.

Swimming Against the Current: The Ninth Circuit's Incorrect Jettisoning of the De Minimis Rule in Class Action Certification

On December 13, 2016, in EEOC v. Catastrophe Management Solutions, the United States Court of Appeals for the Eleventh Circuit held that discrimination on the basis of hairstyle is not actionable under Title VII of the Civil Rights Act of 1964, even if that hairstyle is closely associated with a particular race. In doing so, the Court continued an antiquated tradition in how “immutable characteristics” are viewed and declined to advance a more contemporary notion of “race,” resting instead on decades-old understandings of how race is construed. This Comment argues that with respect to race, courts should follow the Seventh Circuit’s understanding of immutability. Barring that, courts should apply the Supreme Court’s logic in Price Waterhouse v. Hopkins that prohibits stereotype-based sex discrimination to discrimination based on hairstyle and other sociocultural characteristics.

Twisted Up: The Eleventh Circuit Standard for Immutability in EEOC v. Catastrophe Management Solutions

In 2022, in Herrera-Martinez v. Garland, the U.S. Court of Appeals for the Fourth Circuit held that “prosecution witnesses” are not a sufficiently particular social group (PSG) to warrant protection from deportation under the Immigration and Nationality Act. The Fourth Circuit’s decision added to varying interpretations of the requirements for establishing a PSG among other circuits and immigration courts. To qualify as a PSG in the Fourth Circuit, members of the group must share an immutable characteristic and the group must be defined with particularity and be socially distinct. The Seventh Circuit had previously refused to adopt all three requirements in its analysis of PSGs, and consequently, resisted deference to decisions issued by the Board of Immigration Appeals (BIA). This Comment argues that, although the Fourth Circuit accurately applied the three requirements for qualifying as a PSG, some requirements should be optional to provide more flexibility for noncitizen applicants, presiding agencies, and courts in applying the requirements.

Another Group Bites the Dust: The Fourth Circuit's Rigid Determination of Particular Social Groups

On July 14, 2021, in United States v. Tuggle, the United States Court of Appeals for the Seventh Circuit held that the warrantless use of pole cameras to continuously surveil a suspect for eighteen months did not constitute a Fourth Amendment search. In doing so, the Seventh Circuit contributed to a growing body of judicial disagreement about the proper approach to technology-enabled searches, mosaic theory, and the scope of the United States Supreme Court’s decision in Carpenter v. United States. This Comment argues that the approach in Tuggle is incorrect because it unnecessarily narrows Carpenter and relies on assumptions no longer relevant to technology-enabled searches.

Form Over Function? Pole Cameras, Tuggle, and the Fourth Amendment

On March 3, 2022, in United States v. Dubin, the United States Court of Appeals for the Fifth Circuit interpreted 18 U.S.C. § 1028A(a)(1) of the aggravated identity theft statute broadly to apply to a defendant who employed a patient’s accurate identifying information to overcharge Medicaid for services provided. In doing so, the court exacerbated the circuit split over the meaning of “use” in § 1028A(a)(1), siding with the Fourth, Eighth, Eleventh, and D.C. Circuits that have interpreted use to mean any involvement of another person’s identifying information in committing certain federal offenses. By contrast, the First, Sixth, Seventh, and Ninth Circuits have confined the statutory meaning of use to describe only cases of identity falsification in the commission of federal offenses. This Comment argues that the Dubin court erred in failing to consider the statutory ambiguity and, consequently, legislative history of § 1028A(a)(1), which indicates a more limited application of the sentencing enhancement. Unless Congress clarifies that the aggravated identity theft statute applies to cases in which no identity has been falsified, the Supreme Court should construe § 1028A(a)(1) narrowly, balancing the plain meaning of use with Congress’s intent to target acts of identity misrepresentation, and avoiding the over-penalization of criminal defendants for want of clarity.

What Kind of Liar Are You? The Fifth Circuit's Broad Interpretation of Aggravated Identity Theft

This essay argues that the lack of a federal blanket prohibition against ransomware payments undermines the purpose and effectiveness of the U.S. sanctions regime. The U.S. cyber-related sanctions program suffers from an essential problem of timing: often payments to malicious cyber actors are not prohibited until those actors have been named to the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Yet those actors generally are not so designated until they have been identified as malicious through a completed or attempted attack. Further, the time between a cyberattack and the designation of a party as an SDN is generally not short enough to prohibit the making of a ransomware payment in response to an attack itself. A blanket prohibition against the making of ransomware payments would supplement the OFAC regulations and remedy a structural shortcoming of that regulatory scheme.

Ransomware, Cyber Sanctions, and the Problem of Timing

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller.

NYSRPA v. Bruen and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security Approach

In 2020, in United States ex rel. Druding v. Care Alternatives, the United States Court of Appeals for the Third Circuit advanced a broad interpretation of “falsity” under the federal False Claims Act (FCA) to allow conflicting medical opinions on a patient’s medical prognosis as evidence of false certification for hospice eligibility. In doing so, the court rejected a blanket rule that clinical judgments are immune from legal challenge and dismissed an “objective falsehood” requirement because it inappropriately conflated elements of the statute. The holding has important implications in industries with high risk for fraud, particularly the for-profit hospice industry that contracts with Medicare. This Comment argues that the Third Circuit’s liberalization of the falsity element aligns with congressional intent to create broad FCA liability for any attempt to defraud the government. Moreover, the Third Circuit’s approach incentivizes entities that receive federal funding to strengthen internal oversight and compliance programs.