The COVID-19 pandemic continues to rage on in much of the world, severely affecting the health of millions. But citizens of high-income nations have accepted the pandemic to be over. The key to ending the pandemic globally across all nations is equal and efficient access to necessary COVID-19 therapeutics, including vaccines. This Article argues that least developed nations and their access to COVID-19 therapeutics, including vaccines, is negatively impacted by the TRIPS Agreement. International human rights law and the TRIPS Agreement remain incompatible, leading to disproportionate access of necessary therapeutics as systemic racism is perpetuated. Along with considering short term solutions, this Article urges that the TRIPS Agreement needs to be overhauled.

Intellectual Property and Technology Forum

A Trip to Inequity: How the TRIPS Agreement Hinders Access to Needed COVID-19 Therapeutics

Boston College Law Review

Front Matter

While Congress’s ability to legislate in a timely and effective fashion has declined substantially over recent decades, the complexity of issues demanding serious attention from the United States legal system has risen, leading to a situation where problems outpace solutions. Administrative agencies have regularly stepped in to address novel and highly technical crises. Agencies utilize longstanding statutory delegations of authority that are sufficiently general in their terms to enable them to handle problems that did not exist when a statute was originally drafted. Lately, an emphatic de-regulatory nondelegation movement has developed in the courts with conservative judges seeking to narrow delegations of authority, especially in areas of progressive administrative action. When a cited delegation of authority to regulate is countermanded by the courts, it effectively remands the matter to Congress, where it will meet bipartisan gridlock. Prominent among the nondelegation rationales for blocking agency action is the “major questions” doctrine, coupled with a growing criticism of Chevron deference. Serious societal problems like climate change require responsive administrative actions, providing increased opportunity for use of the major questions doctrine to block their implementation. Recent decisions in the U.S. Circuit Courts of Appeals provide a solution to this regulation constricting dilemma: the case for courts to extend deference to agency interpretations of regulatory authority is substantially strengthened where agencies have engaged in a process of coordination among those with relevant expertise and overlapping statutory authority on the subject matter at issue. This Note argues that to solve the nondelegation tensions and effectively address pressing crises like climate change, judicial review of agency actions under nondelegation and deference doctrines should always incorporate a thoughtful analysis of an agency’s coordination policies and practices.

Major Questions Require Major Coordination: Enhancing Regulatory Coordination to Combat Nondelegation and Anti-Deference Judicial Scrutiny

As action to combat climate change stalls on the federal level, cities and towns have taken the lead in passing environmentally friendly legislation. Nevertheless, as political polarization continues, states have increasingly employed preemption ceilings to curb municipal legislative efforts. Many state constitutions are structured in a manner that explicitly enable states to preempt local legislation. Because municipalities historically had no power to pass legislation without express approval from their state of incorporation, and despite their increased authority under home rule, municipalities have had no way to combat preemptive laws. In 2013, in Robinson Township v. Commonwealth, Justice Baer of the Pennsylvania Supreme Court, writing in concurrence, offered one possible solution: the Due Process Clause. This Note argues that municipalities, advancing the argument of Justice Baer’s concurrence, can use the Due Process Clause to overcome state preemption in environmental law.

Green New Appeal?: The Due Process Clause as a Defense Against State Preemption of Municipal Environmental Laws

The term employee, though colloquially understood as a simple concept, is difficult to define. The advancement of technology enabling the development of new forms of work only further complicates defining this term. In particular, the recent inception and expansion of the gig economy increases the complexity of understanding what it means to be an employee. The combination of decentralization, the precariousness of the work, and the disproportionate shift of risk from the capital to the working class in the gig economy challenges the effectiveness of the current statutory framework built around the traditional concept of an employee. The National Labor Relations Act (NLRA), which is part of this statutory framework, has been unable to formulate a workable definition of an employee for the modern economy. This Note first provides an overview of the gig economy, the development of the independent contractor test under the NLRA, the application and implications of the currently applied test, and its proposed replacement, the ABC test. It then outlines the particular importance of NLRA coverage for gig workers and details problems with the use of the common-law right to control test. Finally, this Note argues that Congress should revise the NLRA by adopting the ABC test to determine who qualifies as a covered employee. This solution would better align the NLRA’s coverage with its stated purpose and give gig workers a voice to address grievances while allowing businesses to retain their unique labor structures.

“We Want All Workers to Have the Right to Bargain Collectively”: How the ABCs Can Equalize the Gig Economy

The prison is an epicenter of dominance—it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls. But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act (the “PLRA”) to obstruct their pathways to judicial relief. A centerpiece of this effort is the Act’s administrative exhaustion provision. 

Prisons design demanding grievance pleading standards to make the PLRA’s exhaustion requirement more difficult for the people they confine. When a federal court disagrees with the prison’s interpretation of a pleading rule and permits an incarcerated plaintiff’s claim to move forward, the decision appears to be a victory that safeguards incarcerated people’s right to judicial redress. It is tempting to perceive the plaintiff’s success as the prison’s defeat. But when we peer behind the curtain and interrogate what follows, a dangerous manipulation of power emerges. Prisons have responded to litigation “defeats” by amending their grievance rules to impose a more onerous pleading standard that forecloses the short-lived victory. What appears at first glance to be a welcome exercise of judicial intervention functionally becomes an invitation—indeed, a blueprint—for the prison to raise its grievance pleading bar and immunize itself from future liability. 

This reactive process—what I call the “prison pleading trap”—creates a perilous regime of perverse incentives. This Article investigates the trap’s operations and impacts and, upon considering a range of potential solutions, it recognizes the merits of transformative change. Congress created PLRA exhaustion to reduce the quantity of prison litigation, but this reform addressed a symptom (the volume of litigation) while ignoring the disease (mass incarceration). Discrete procedural solutions to prison grievance pleading may have meaningful impacts, but they are ultimately incomplete without a concurrent commitment to decarceration.

The Prison Pleading Trap

It is estimated that one in four women will undergo an abortion and that over a quarter of women will face pregnancy loss. Nevertheless, the general public often underestimates the true rates of both pregnancy termination and complication. One likely reason for this underestimation is that reproductive health is something many individuals keep private from their friends, family, and coworkers. Yet, this personal secrecy is directly at odds with corporate data practices and commercial data sharing. In reality, a vast data ecosystem collects and monetizes all aspects of reproductive health. This ecosystem took on a new dimension in 2022, when the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization. Since then, Dobbs has brought the lack of reproductive health privacy into stark relief and highlighted how intimate health data can be leveraged to identify and prosecute those seeking abortions. Reproductive health surveillance is omnipresent, expansive, and extremely problematic. But privacy concerns should not be limited to only protecting information about abortions or to only protecting information from access by law enforcement. Reproductive health, from contraception and pregnancy to infertility and assisted reproduction to pregnancy loss and abortion, are inextricably intertwined, and thus greater privacy protection of all reproductive health information is needed. Immediate solutions focus on individual self-management and company good will: women are encouraged to delete their period tracking apps or to adopt burner phones, and companies are pressured to make changes to their data collection and retention practices. More is desperately needed. Only with radical, sweeping changes to data privacy can we hope to move from reproductive health surveillance to meaningful reproductive health privacy.

Reproductive Health Surveillance

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.

BCLR Electronic Supplement

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

This Article examines the issue of gang evidence through the lens of the law’s use of presumptions and the corresponding burdens of proof at play in immigration proceedings. In immigration law, most of the burdens of proof fall on noncitizens. These burden allocations allow adjudicators to readily accept the harmful presumption contained in the gang evidence — that urban youth of color are criminals and likely to engage in violent crime associated with gangs. This Article seeks to explain how this racist assumption led to the creation of a gang database, and proposes an evidentiary presumption that the gang evidence is not reliable, in order to specifically instruct the judge to reject the presumption society has put in place about urban youth of color and criminality. In this way, this Article tracks common interests of critical race theory, by explaining how U.S. society has subordinated people of color in the creation of gang databases, and seeking to not only understand, but change this bond between law and racial power.

Part I explains the justifications for why gang databases exist, using the creation of Boston’s Gang Database as an example. Following the lead of critical race theorists, this Part asks whether there is a counter-account of the social reality in Boston that led to the creation of this database. This Part then discusses various forces that gave rise to its creation: the segregation and concentration of poor people of color in certain neighborhoods; the diminishing social services in these neighborhoods, which gave rise to the police acting as the primary social workers, all the while surveilling young men of color; the extraordinary powers granted to the police to surveil and control these young men; and the labeling of a dangerous minority whom the government can eradicate through detention and deportation. Part I also explains how local anti-gang efforts became part of a national immigration enforcement agenda. Part II discusses burdens of proof in the law and how the burdens operate in immigration cases to validate harmful presumptions that a young man of color is a gang member. Part III proposes the creation of an evidentiary burden that gang evidence is unreliable in immigration cases and explains how that burden can counteract the harmful presumptions contained in the gang evidence.

Boston College Law School Faculty Papers

Gang Accusations: The Beast That Burdens Noncitizens

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.

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