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.

“Dueling” Experts and the False Claims Act: Weaponizing Legal Falsity to Combat Hospice Fraud

On May 3, 2021, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit held that a court’s non-binding “strike” recommendation under the Prison Litigation Reform Act (PLRA) did not violate the PLRA or Article III of the United States Constitution. Courts agree that binding strikes are impermissible, but disagree on the underlying reasoning. The Sixth Circuit reasoned that the PLRA, which revokes in forma pauperis filing from indigent prisoner-litigants after three qualifying dismissals, renders binding strikes impermissible before a prisoner accrues three strikes. By resolving the issue using the PLRA, the Sixth Circuit found the constitutional inquiry unnecessary. This Comment argues that the Sixth Circuit’s approach is correct because it aligns with the well-established canon of constitutional avoidance. The Sixth Circuit’s approach also narrows the legal issues in a PLRA ruling, thereby communicating familiar legal principles to under-resourced prisoner-litigants.

Calling Strikes: The Sixth Circuit’s Interpretation of the Prison Litigation Reform Act

On May 6, 2021, in Shipley v. Helping Hands Therapy, the U.S. Court of Appeals for the Eleventh Circuit held that non-jurisdictional remands must be based on timely motions to remand that assert procedural defects. This holding revisited a split between the U.S. Court of Appeals for the Ninth and Fifth Circuits regarding the proper interpretation of 28 U.S.C. § 1447(c)’s non-jurisdictional remand provision. The Ninth Circuit—much like the Eleventh Circuit but with different reasoning—found that both the raising of the procedural defect and the motion to remand must be timely, whereas the Fifth Circuit held that only the motion to remand must be timely. This Comment argues that the Eleventh Circuit’s approach is preferable because it better employs canons of statutory interpretation and arrives at a conclusion that is supported by legislative intent.

Motion Denied: Procedural Pitfalls Prevail in Motions to Remand

On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) defines all “other reasons” under the catch-all provision that qualify an inmate for compassionate release. Before 2018, only the Director of the BOP could file compassionate release motions under 18 U.S.C. § 3582(c)(1)(A). The First Step Act of 2018 amended the statute to allow defendants to file motions too. Because the policy statement still begins with the phrase “upon motion of the Director of the BOP,” courts have since questioned whether it also applies to defendant-filed motions. In a departure from the holdings of the United States Court of Appeals for the Third, Fourth, Fifth, Sixth, Seventh, Ninth and D.C. Circuits, the Eleventh Circuit decided that the policy statement and its corresponding Application Notes apply to defendant-filed motions for compassionate release. Under this interpretation, only the BOP defines the “other reasons” that warrant compassionate release pursuant to Application Note 1(D). This Comment argues that the Eleventh Circuit was incorrect in its interpretation because it disregarded the plain text of the policy statement and erroneously considered the legislative intent of a different statute.

Procedural Pitfalls: The Eleventh Circuit Holds That the Sentencing Commission’s Policy Statement on Sentence Reduction is Binding on Defendant-Filed Motions

On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of more recent Supreme Court decisions, came to the correct conclusion.

A Hacker “May” Have Accessed Your Data: Can Victims of Data Breaches Sue Before Alleging Misuse?

On July 27, 2020, in Allen v. Wells Fargo & Co., the U.S. Court of Appeals for the Eighth Circuit held that plaintiffs who bring an imprudence claim under the Employment Retirement Income Security Act against a fiduciary of an employee stock ownership plan (ESOP) alleging that the fiduciary failed to act on negative inside information do not meet their pleading burden. In doing so, the Eighth Circuit agreed with three other federal circuit courts that an imprudence claim predicated on an ESOP fiduciary’s failure to disclose negative information is insufficient to survive a motion to dismiss. Only the Second Circuit has held that plaintiffs can survive a motion to dismiss when offering early disclosure as a possible alternative action the fiduciary could have taken. This Comment argues that the Eighth Circuit’s holding is correct because it best protects ESOP plan managers and takes account of ESOP’s unique structure.

Stuck Between a Fiduciary Rock and a Prudential Hard Place: The Eighth Circuit’s Approach to Erisa’s Duty of Prudence

On May 13, 2021, in United States v. Dominguez, the U.S. Court of Appeals for the Eleventh Circuit joined a pre-existing circuit split regarding the meaning of “sexual activity” under 18 U.S.C. § 2422 and whether that term requires physical contact between the defendant and the victim. The statute prohibits individuals from coercing or enticing others to participate in illegal sexual activity, including when the victim is a minor. The U.S. Court of Appeals for the Fourth and Seventh Circuits previously reached opposite interpretations of the phrase’s meaning. The court in Dominguez agreed with the Fourth Circuit and held that the phrase did not require the defendant to engage or attempt to engage in physical contact with another individual. This Comment argues that the Fourth and Eleventh Circuits reached the correct interpretation of “sexual activity” as not requiring physical contact.

"Sexual Activity": What Qualifies Under 18 U.S.C. § 2422?

On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held that Title III unambiguously excludes websites and other non-physical places. Although it vacated Gil, the Eleventh Circuit’s reasoning provides valuable insight as to how this court will decide when it hears another Title III appeal in the future. This comment argues that the Eleventh Circuit, with its extremely narrow interpretation of Title III, erred by disregarding the ambiguity of the Act’s language and should have construed the statute in light of Congress’s purpose.

There's No Place Like Dot-Com: Are Websites Places of Public Accommodation Under Title III of the ADA?

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. Constitution. The Eleventh Circuit agreed with the Seventh Circuit and declined to permit a constitutional claims exclusion. In contrast, the First, Eighth, Ninth, and D.C. Circuits have each held that the discretionary function exception does not shield the United States from liability where the conduct at issue allegedly violates the Constitution. This Comment argues that the minority approach is correct because sovereign immunity doctrine indicates that courts should read any exception narrowly in favor of the federal government.

Sovereign Immunity or: How the Federal Government Learned to Stop Worrying and Love the Discretionary Function Exception

A shocking number of fertility doctors surreptitiously use their own sperm during insemination procedures. Courts and commentators have explained how medical malpractice and common-law tort claims can provide the mother with remedies. The children of fertility fraud have received less attention. This Essay is the first to systematically analyze the potential claims of these children, whose identities may be shattered by discovering the truth about their biological father. It concludes that creative use of existing common-law torts can provide remedies for children of fertility fraud.

Fertility Fraud: The Child's Claims

This essay was delivered as the 2021 Holocaust and Human Rights Project Owen Kupferschmid Memorial Lecture. The Owen M. Kupferschmid Holocaust/Human Rights Project is named after its founder, a 1986 Boston College Law School graduate. Launched in 1984, the project’s goal was to ensure that the precedential value of Holocaust-related law is fully realized and applied to state-sponsored human rights violations today.

Evidence, Truth, and History in Atrocity Trials

On March 9, 2021, in United States v. Lancaster, the United States Court of Appeals for the Fourth Circuit held that a district court ruling on a First Step Act motion must consider intervening factual and legal developments when deciding whether to resentence an offender under the Act. In doing so, the Fourth Circuit exacerbated a circuit split regarding the proper scope of the First Step Act. Four circuits, led by the United States Court of Appeals for the Fifth Circuit, have taken the opposite position and do not allow their district courts to consider intervening circumstances at all. The United States Courts of Appeals for the First, Second, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, on the other hand, allow their district courts to consider intervening circumstances but do not require them to do so. Within the latter group, the First Circuit created a two-step framework for ruling on a First Step Act motion where a district court may not consider intervening circumstances when deciding whether to resentence but may do so when actually resentencing. This Comment argues that the Fourth Circuit incorrectly expanded the First Step Act’s scope of relief in United States v. Lancaster because it did not properly balance the Act’s statutory text with the Act’s discretionary grant. Additionally, this Comment argues that the Supreme Court should adopt the First Circuit’s two-step framework because that approach best realizes Congress’s intent within the Act’s textual limitations.

Scratching the "8-Ball": The Fourth Circuit's Approach to the First Step Act Misses the Mark

This essay argues that international law binds the United States to adopt comprehensive policy providing accessible and affordable child care as a right of women. Women disproportionately assume the responsibility of unpaid and undervalued child care and therefore are impeded from full participation in public life. These discriminatory effects compound for minority women. Despite its wealth, the United States is outside the mainstream of international morality and out of bounds of its obligations under the American Declaration, ICCPR, ICERD, and customary international law. This essay employs intersectionality analysis and the due diligence principle to add missing texture to the significance of this debate for the United States. The plan proposed by Senator Elizabeth Warren in her 2020 bid for president meets the United States’ affirmative obligations. In adopting this plan, the United States would also align with its allies and advance its own economic, political, and security interests.

The Right of Women to Child Care in the United States

The authors of The Cost of Guilty Breach have pointed out an interesting issue—why is it that merger agreements import into their contracts language of moral culpability to establish liability in connection with a breach of the agreement? The authors propose some persuasive hypotheses to explain the presence of “willful breach” language. In this brief response, I mostly agree with the authors and offer a few of my own thoughts about the merger contract and breach.

Response to The Cost of Guilty Breach: What Work Is “Willful Breach” Doing?

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability to ensure that disabled Americans are given equal opportunity to participate in all aspects of life. Title I of the ADA, in particular, prohibits employers from discriminating against employees because of a disability in all employment matters. Courts have struggled to consistently define which impairments constitute a disability under the statute. In June 2020, in Darby v. Childvine, Inc., the U.S. Court of Appeals for the Sixth Circuit seemingly expanded ADA coverage by holding that Sherryl Darby plausibly alleged that she was disabled due to a genetic mutation. This Comment argues that the Sixth Circuit properly allowed Darby’s claim to survive a motion to dismiss, echoing the legislative intent behind the ADA Amendments Act of 2008.

Substantially Mutated: Are Genetic Mutations “Disabilities” Under the Americans with Disabilities Act?

On May 13, 2020, in Doc’s Dream, LLC v. Dolores Press, Inc., the U.S. Court of Appeals for the Ninth Circuit held that a court has discretion under § 505 of the Copyright Act to award reasonable attorney’s fees in declaratory relief actions for copyright abandonment. In this matter of first impression, the Ninth Circuit reversed the U.S. District Court for the Central District of California’s holding that a declaratory relief action for copyright abandonment does not invoke the fee-shifting provision under the Copyright Act. This Comment argues that the Ninth Circuit’s holding appropriately reflects congressional intent.