
 The clamor for police reform in the United States has reached a fever pitch. The current debate has mainly centered around questions of police function: What functions should police perform, and how should they perform them to avoid injustice and unnecessary harm? This Article, in contrast, focuses on a central aspect of police culture—namely, how police envision their relationship to those policed. It exposes the vast reach of a deeply engrained “danger narrative” and demonstrates the disastrous consequences that this narrative has helped to bring about. Reinforced by police training, codified by courts, and broadly deployed, the danger narrative is an “us-versus-them” ideology that envisions “them”—all persons whom police are observing, investigating, detaining—as a lethal danger to “us”—law enforcement personnel. Structural and functional reforms have little hope of succeeding unless this toxic narrative can be displaced.

The Article first explains the content of the danger narrative and its centrality both to policing and the law of policing. It then scrutinizes the narrative, finding that its core claims about the perils of policing are substantially exaggerated. The Article further explains how, ironically, these exaggerated claims actually create danger that could otherwise be avoided, and thus serve as an illegitimate “bootstrapping” argument for uses of excessive force. More troublingly still, the purportedly empirical danger narrative embeds a previously unexamined and entirely untenable normative proposition: Namely, that it is better for scores of suspects to be unjustifiably injured or killed by police than for any police officer to be injured. 

The Article concludes with a call for a new narrative frame to address both the empirical and normative pitfalls of the danger narrative and to permit meaningful police reform to take root. Drawing on insights from communitarian theory, and from such fields as medicine and aviation, it proposes institutional reforms that would promote core values of professionalism, including the adoption of data-driven, evidence-based practices, while also undermining the danger narrative’s pernicious us-versus-them ideology by cultivating empathy and reimagining police-community partnerships. Ultimately, the prospect of better and safer policing hinges on the adoption of these and other measures to inculcate in police departments a more accurate depiction of the real risks of in-the-line-of-duty violence.

Boston College Law School Faculty Papers

Policing the Danger Narrative

In the aftermath of racial justice protests, the country has witnessed a wave of conservative anti-“critical race theory” (CRT) legislation. This essay argues that such legislation is best understood as the latest iteration of a long-standing reactionary political practice. This practice goes back a century to World War I and the 1920s. Then, as now, it was marked by two critical elements: an argument about national identity and a focus on public schools. In the early twentieth century, conservatives began systematically fusing ethno-racial claims about Anglo-European cultural distinctiveness with a self-consciously universal language of the United States as a uniquely free and equal society. They further contended that public schools were failing to adequately teach children in the nation’s true values and called for a series of school measures with uncanny resemblances to the present.

In exploring this pre-history of today’s attacks on public schools, the essay teases out why arguments akin to anti-“CRT” claims initially emerged and recur whenever there have been major flashpoints around cultural and national identity. It also highlights a seemingly paradoxical phenomenon: In the United States, the most prominent defenses of racial hierarchy and attacks on racial reform often speak in a “civic” and ostensibly universal register rather than in an “ethnic” nationalist one. This fact requires Americans to confront the embedded drawbacks of longstanding and taken-for-granted narratives of national purpose, narratives commonly invoked across the political spectrum.

Anti-"CRT," A Century Old Tradition

The editors of the JRE solicited short essays on the COVID‐19 pandemic from a group of scholars of religious ethics that reflected on how the field might help them make sense of the complex religious, cultural, ethical, and political implications of the pandemic, and on how the pandemic might shape the future of religious ethics. In her essay, Professor M. Cathleen Kaveny argues for the involvement of religious ethicists in making public health and other policy decisions. 

Religious Groups, the Government, and the Pandemic: The Missing Voice of Religious Ethicists

Elizabeth “Eliza” Harriot Barons O’Connor was the first woman public lecturer in the United States, as well as a promoter of ambitious female education. She was born in March 1749 to English parents, Benjamin Barons and Margaret Hardy Barons, in Lisbon, Portugal. She likely accompanied her father to New York when he served as secretary to Governor Sir Charles Hardy from 1756 to 1758. Beginning in 1759, she likely attended a French boarding school in Chelsea, England. She married John O’Connor, an Irish lawyer, on June 6, 1776, and spent the late 1770s and early 1780s in Dublin and London, where the O’Connors were exposed to transformative ideas about political and social expectations regarding women and other disenfranchised groups. In 1786, the O’Connors moved to New York City and Eliza Harriot O’Connor opened the first of several successful female academies that offered an ambitious academic program for young women. In early 1787, the O’Connors moved to Philadelphia, where Eliza Harriot O’Connor gave a series of public lectures at what would become the University of Pennsylvania. George Washington attended a lecture that she gave in May 1787, which helped to publicize her ideas about advanced female education and the ability of women to participate in intellectual life. Her presence in Philadelphia in the summer of 1787 may have influenced the gender-neutral language of the U.S. Constitution. O’Connor was obliged to follow her peripatetic husband down the Eastern Seaboard as he started and failed at several publishing ventures. She opened successful female academies in Alexandria, Georgetown, and Charleston and Columbia, South Carolina, where she resided until her death in 1811.

This article was originally published in <a href="https://encyclopediavirginia.org/entries/elizabeth-harriot-barons-oconnor-1749-1811/">Encyclopedia Virginia</a> and is licensed under <a href="https://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA 4.0</a>.

Elizabeth Harriot Barons O’Connor (1749–1811)

In the library profession, and in the world as a whole, the experiences of trans and gender diverse people often go unnoticed, hidden, and ignored. But we are here. Trans and Gender Diverse Voices in Libraries is entirely written and edited by trans and gender diverse people involved in the field: its fifty-seven authors include workers from academic and public libraries, special collections and archives, and more; LIS students; and a few people who have left the library profession completely.

This book is not intended to be the definitive guide to trans and gender diverse experiences in libraries, but instead to start the conversation. It is our hope that this book will help trans and gender diverse people in libraries realize that they are not alone, and that their experiences are worth sharing.

This book also demonstrates some of the reality in a field that loves to think of itself as inclusive. From physical spaces to policies to interpersonal ignorance and bigotry, the experiences recounted in this book demonstrate that the library profession continues to fail its trans and gender diverse members over and over again. You cannot read these chapters and claim that Safe Zone stickers and “libraries are for everyone” signs have done the job. You cannot assume that everything is fine in your workplace because nobody has spoken out. You can no longer pretend that we don’t exist.

This chapter offers a personal reflection on being transgender and navigating the balance passing and disclosure while working at an academic law library.

CC BY-NC 4.0 Attribution-NonCommercial

Thirteen Books

Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.

Dillon’s Rule is a rule in local government law holding that localities wield only the powers expressly granted to them by states and no others. In this Article, I suggest that this view rests on a misinterpretation of the Rule’s origins narrowly centered on nineteenth-century jurist John Forrest Dillon’s hostility toward local power and his faith in state power. I put Dillon’s Rule back into the historical path from which it emerged, the evolution of U.S. public debt and economic development in the nineteenth century. I argue that this new historical contextualization reveals that Dillon’s Rule also distributes public and private power.

Dillon and his Rule emerged during a critical moment in the evolution of U.S. public debt and economic development, after federal and state debt-financed economic-development projects failed, and localities took up the task. Iowa was the epicenter of local debt finance, and it was where Dillon, then a state court judge, saw a wave of defaults in the 1860s as evidence of cities’ inherent wastefulness and susceptibility to public corruption. Dillon believed, left to their own devices, cities and their mismanagement of debt would repeatedly deprive creditors and investors of their property. In response, Dillon authored the doctrine that would become known as his Rule. But Dillon did not give states the task of disciplining fiscally irresponsible cities. The Rule’s empowering of states was largely procedural. Dillon made cities fiscally powerless so that they could only borrow and spend in a narrow way that would convince municipal creditors that their debts would be repaid. This constraint on local power by private capital was at the core of the Rule’s design.

In closing, I explore the contemporary ramifications of the Rule’s distribution of public and private power. Today, in the name of attracting and shielding capital against city power as Dillon intended, the Rule shackles cities to a limited range of market-consented options with which to address shortages in local economic development, affordable housing, and climate change. Critically, these burdens fall disproportionately on people of color. I argue that seeing the Rule in this new light should impact how we view the project of revitalizing city power moving forward.

Unshackling Cities

There is a dire need for bail reform in the immigration detention system. Scholars have suggested a variety of recommendations to improve the manner in which immigration detention decisions are made. All of these recommendations have rested on the assumption that there is a finite pool of decisionmakers: Immigration and Customs Enforcement, the immigration judge, and, in certain cases, a federal district court judge deciding detention issues in habeas corpus proceedings. In this article, the author proposes the introduction of a new decisionmaker in the immigration detention system: the criminal court judge. This proposal is a JRAD redux—instead of a judicial recommendation against deportation (“JRAD”), as previously existed in immigration law, it is a judicial recommendation against immigration detention (“JRAID”). To provide a normative defense of this proposal, the article builds off of literature examining immigration detention as punishment, procedural justice, and the relationship between states and the federal government in immigration enforcement.

JRAD Redux: Judicial Recommendation Against Immigration Detention

Satisfying the demand for “climate justice” is a profound challenge, given the disconnect between the states and populations most vulnerable to climate impacts and those most responsible historically for producing the greatest share of GHG emissions. Likewise, there is a need to ensure equitable access to the technologies and other resources necessary for both mitigation and adaptation. Another point of contention is how quickly and comprehensively to act. While the fundamentals of climate science have been well-established for decades, there is ongoing debate over how urgently the world must respond. Even assuming a consensus for urgent action, there is the political difficulty of apportioning the arguably burdensome demands of emissions reductions, requiring certain jurisdictions and populaces to suffer short-term local economic costs in exchange for incompletely defined, long-term collective benefits.

This chapter describes and evaluates the most significant multilateral efforts to grapple with climate disruption. It focuses on the 1992 UN Framework Convention on Climate Change, and its key ancillary agreements—the 1997 Kyoto Protocol and the 2015 Paris Agreement. This analysis includes both multilateral developments and their parallel processes and legal constructs within the United States.

The Multilateral Climate Regime

Antitrust law regulates the consolidation and abuse of economic power. One of its core tasks is to ensure that market success is not rigged in favor of undeserving winners against excluded competitors at consumers’ and workers’ expense. But for their entire enforcement and doctrinal history, antitrust regulators and courts have built a legal infrastructure that assesses the exercise of economic power and its adverse effects as if that power and its effects were “color blind.” In fact, corporate concentration, firm dominance, and anticompetitive conduct not only contribute to structural racism, but the very tools regulators use to combat those harms can reinforce racial inequality and disparately impact people of color.

This Article is a framing project, providing a comprehensive overview of antitrust law’s relationship to racial inequality. Its goal is to identify the core problem areas and mechanisms by which antitrust has contributed to racial subordination in order to invite both a reckoning and suggestions for antiracist reforms. It first explains how firms’ dominance and anticompetitive conduct have rigged market access in ways that create and perpetuate racial inequality. It then situates a novel data set of antitrust cases addressing race since the passage of the Sherman Act within the broader antitrust canon to detail how antitrust enforcers’ and courts’ “color-blind” approach to competition concerns have not only ignored the realities of racial inequality but also reinforced them. Finally, it proposes a suite of reforms as first steps to integrating analysis of race into antitrust enforcement, from market definition and merger review analyses to assessments of the anticompetitive effects and procompetitive benefits of firm conduct.

Antitrust and Race

In 2010, Congress passed the Patient Protection and Affordable Care Act and its companion, the Health Care and Education Reconciliation Act (collectively, the Affordable Care Act, ACA, or Obamacare). President Obama signed the ACA into law on March 23, 2010. Within minutes, Florida and twelve more states filed a complaint that would ultimately result in the US Supreme Court’s first “Obamacare” decision: National Federation of Independent Business (NFIB) v. Sebelius. An unexpected 7–2 majority ruled that the ACA’s Medicaid expansion program exceeded Congress’ spending power because requiring states to either expand or lose all Medicaid funding was unconstitutionally coercive. Nevertheless, expansion could continue as an optional program that states could accept or reject without jeopardizing their pre-ACA Medicaid funding.

NFIB can be analyzed—and criticized—through any number of lenses including political philosophy, bioethics, constitutionalism, and more. A more fundamental criticism rests on the pragmatic concern that a majority of the justices have little understanding of—and a surprising lack of curiosity about—the lived experience of many Americans with the complex and fragmented market for health care. This is particularly troubling for women who have more to gain than their male counterparts from a reformed health care system, and more to lose should it falter. As Professor Elizabeth Weeks, writing as Justice Weeks, forcefully reminds us, women are disproportionately lower income, uninsured, and burdened by medical debt. Moreover, discriminatory practices by insurers have long disadvantaged women expressly by gender rating and limiting coverage for maternity care, and implicitly, for example, through preexisting condition exclusions. Thus, in her opinion concurring in part and dissenting in part, Weeks opines, Medicaid expansion and the individual mandate concern more than commerce, taxing and spending; at their core, they protect an individual’s civil rights to coverage and care. Weeks cites works by feminist legal theorists, including Martha Albertson Fineman and Catherine MacKinnon to support her arguments. Her civil rights analysis also evinces her feminist approach.

A remaining question with particular import for women is: What kind of care and coverage do these civil rights protect? Feminist thinking, implicit in the civil rights analysis of Weeks, assists in finding an answer.

Commentary on National Federation of Independent Business v. Sebelius

YouTube is an important platform for user-generated content and serves as a positive space for creativity on the internet. Nevertheless, there are some glaring problems with the way YouTube handles copyright infringement. Congress enacted the Digital Millennium Copyright Act (DMCA) before the internet had taken shape into the vast and complex body we know today. Copyright holders are given far more leniency than the creators accused of infringement, largely due to a subjective good faith standard imposed by the courts. This article proposes the good faith standard in § 512(c) of the DMCA be amended to incorporate an objective standard instead of the harmful subjective good faith standard.

Intellectual Property and Technology Forum

Keeping the Good Faith: YouTube, Fair Use, and the DMCA

In the wake of the Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, personal data has become a means of investigating and prosecuting individuals who seek or provide abortion services. With little federal oversight into the collection and disclosure of users’ personal data, third parties have significant latitude to sell or profit from sensitive information. The recent use of location and personal data implicates the privacy of millions of individuals and raises significant questions around health care and technology laws in states where abortion is now illegal. In the absence of sweeping federal regulations around data collection and disclosure, states ought to enact stronger legislation to protect their citizens from the exploitation of their most sensitive data.

iSpy Someone Getting an Abortion: The Use of Personal Data in the Post-Dobbs Era

Stare decisis may not be an “inexorable command,” but it certainly commands a substantial amount of the Supreme Court’s time and attention. Nowhere is this truer than in the fraught context of the Court’s abortion jurisprudence. In its landmark 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a narrowly divided Court connected the continued constitutional protection for abortion rights to the perceived necessity of adhering to its earlier decision in Roe v. Wade. Since then, the Court’s abortion decisions have often featured sharp divisions over the proper understanding and application of stare decisis.

In a prior Article, I suggested a framework for extracting precedential guidance from plurality decisions that focused on identifying the universe of future cases that fall within the domain of overlapping agreement shared between the various judgment supportive opinions in a case. The Court’s decisions in Ramos and June Medical provide an occasion to revisit and extend that framework by illustrating how courts applying this “shared agreement” approach should think about plurality decisions in relation to prior majority-supported precedent.

The shared agreement approach provides a way of thinking about plurality precedent that helps to identify plurality decisions that overturn or alter prior precedent and to distinguish them from decisions that leave preexisting precedent untouched. In particular, the shared agreement approach recognizes the ability of plurality decisions to alter precedent only in those circumstances where a majority of Justices whose votes were collectively necessary to the judgment in the original case agree that the earlier precedent should be overruled. Where, by contrast, the members of the judgment-necessary majority disagree about prior precedent, the willingness of a subset of the majority to overrule an earlier decision leaves the precedential status of the earlier decision undisturbed.

Plurality Decisions and Prior Precedent

The Brazilian Worker Center (BWC) is a community-based organization that supports immigrants on issues of workplace rights, and provides a variety of community support services. We work in partnership with community members; supporting them in executing their rights through organizing, advocacy, education, leadership, capacity building, and civic engagement. We join Brazilians and other immigrants by supporting them in organizing against economic, social, and political exclusion in order to create a more just society. The passage of the Massachusetts Domestic Workers Bill of Rights (DWBR) in 2014 was the culmination of such an organizing effort by five community groups, including BWC, and represents a monumental step toward such justice. 

Nearly seven years since the DWBR went into effect, BWC thought it vital to study the impact of this law on domestic workers. Domestic workers are essential to our community – they take care of our homes and our loved ones – and therefore, it is our duty, as a community, to also take care of them. We hope this study will push all of us to work harder to fulfill the promise of the DWBR. 

This report is being released at a crucial time for the immigrant community. Nearly a decade after our coalition passed the DWBR, and after years of advocacy and challenges from opposition groups, we passed a new law, the Work and Family Mobility Act. This law allows people, regardless of immigration status, to obtain their driver’s license in the state of Massachusetts. However, our work for immigrant workers must continue and this Report provides a blueprint for how we can further advance the rights of domestic workers in our state.

Making it Work for Workers: A Study on the Efficacy of the Massachusetts Domestic Workers Bill of Rights

The U.S. biotechnology industry got its start and grew to maturity over roughly three decades, beginning in the 1980s. During this period genes were patentable, and many gene patents were granted. University researchers performed basic research—often funded by the government—and then patented the genes they discovered with the encouragement of the Bayh-Dole Act, which sought to encourage practical applications of basic research by allowing patents on federally funded inventions and discoveries. At that time, when a researcher discovered the function of a gene, she could patent it such that no one else could work with that gene in the laboratory without a license. She had no right, however, to control genes in nature, including in human bodies. Universities licensed their researchers’ patents to industry, which brought in significant revenue for further research. University researchers also used gene patents as the basis for obtaining funding for start-up enterprises spun out of university labs. It was in this environment that many of today’s biotechnology companies started. In 2013, the Supreme Court held that naturally occurring genes could no longer be patented. This followed a 2012 decision that disallowed patents on many diagnostic processes. These decisions significantly changed the intellectual property protections in the biotechnology industry. Nevertheless, the industry has continued to grow and thrive. This Article investigates two questions. First, if some form of exclusive rights still applied to genes, would the biotech industry be even more robust, with more new entrants in addition to thriving, well-established companies? Second, does the current lack of protection for gene discoveries incentivize keeping such discoveries secret for the many years that it can take to develop a therapeutic based thereon—to the detriment of patients who could benefit from knowledge of the genetic associations, even before a treatment is developed? The Article concludes by analyzing what protection for discovering genetic associations, if any, will most increase social welfare.

Patenting Genetic Information

David Ricardo, John Stuart Mill and other classical economists highlighted the important potential gains from specialization and trade. Today, economists refer to the concept of the terms of trade to analyze which trading party manages to obtain what share of those gains. From a normative perspective, trade is a prime example of what Rawls calls the “circumstances of justice”: trading parties have both overlapping interests—they can enhance their wealth through trade—and conflicting interests—they want to maximize their share of the gains from trade.

Mathias Risse and Gabriel Wollner’s book On Trade Justice provides us with a normative toolkit to assess what terms of trade can be considered just. Their analysis of justice in trade is not limited to trading relations between states, even though they recognize the important role that states play, but extends to the obligations that arise from trade for other actors such as corporations.

On Trade Justice represents an important and unique contribution to the growing literature on trade justice. The contributions to this special issue critically assess some of the central arguments put forward by Risse and Wollner. Encouraging this constructive dialogue on the different facets of trade represents one important step towards more just trading practices.

The goal of this brief introduction is twofold. First, we pick up on a number of fundamental questions raised by both Risse and Wollner and by the contributors to this special issue. Second, we provide a short overview of each of the articles.

On Whose Terms? Power and Exploitation in Trade

The Massachusetts Guide to Evidence is prepared annually by the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law. By direction of the Justices of the Supreme Judicial Court, the Guide organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide.

Massachusetts Guide to Evidence: 2023 Edition

Side effects of COVID-19 or other vaccinations may affect an individual’s safety, ability to work or care for self or others, and/or willingness to be vaccinated. Identifying modifiable factors that influence these side effects may increase the number of people vaccinated. In this observational study, data were from individuals who received an mRNA COVID-19 vaccine between December 2020 and April 2021 and responded to at least one post-vaccination symptoms survey that was sent daily for three days after each vaccination. We excluded those with a COVID-19 diagnosis or positive SARS-CoV2 test within one week after their vaccination because of the overlap of symptoms. We used machine learning techniques to analyze the data after the first vaccination. Data from 50,484 individuals (73% female, 18 to 95 years old) were included in the primary analysis. Demographics, history of an epinephrine autoinjector prescription, allergy history category (e.g., food, vaccine, medication, insect sting, seasonal), prior COVID-19 diagnosis or positive test, and vaccine manufacturer were identified as factors associated with allergic and non-allergic side effects; vaccination time 6:00–10:59 was associated with more non-allergic side effects. Randomized controlled trials should be conducted to quantify the relative effect of modifiable factors, such as time of vaccination.

CC BY 4.0 Attribution

Identifying Modifiable Predictors of COVID-19 Vaccine Side Effects: A Machine Learning Approach

Recent revisions to ABA accreditation standards provide yet another exciting opportunity for faculty teaching lawyering skills to position our courses as central to preparing students for excellence in professional practice, particularly in terms of offering opportunities for professional identity formation in the first-year curriculum.

ABA Standard 303(b)(3) now formally requires that law schools provide “substantial opportunities” to law students for “the development of a professional identity.” Interpretation 303-5 provides that professional identity “focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” Importantly, the Interpretation counsels that this practice requires “requires reflection and growth over time,” including frequent opportunities for development “during each year of law school” and “in a variety of courses . . . and activities.”

Like many of our colleagues across the country even prior to the February 2022 standards revision, the first-year lawyering skills faculty at Boston College Law School has integrated professional identity formation into our teaching in a variety of ways. This article briefly describes our comprehensive, experiential lawyering skills curriculum that specifically incorporates professional identity formation into its learning outcomes. Then, it offers the “oral report to a supervising attorney” module as an example of a traditional skills exercise that we’ve reframed to offer a specific opportunity for professional identity formation which incorporates the perspectives of practicing lawyers and judges, including BC Law alumni, and allows students to better envision themselves as lawyers in a wide range of professional practices. Finally, the piece offers suggestions for faculty seeking to recreate the exercise at other schools and reflects on enhancements we will make to the activity going forward. 

Integrating the Perspectives of Alumni Practitioners into the Oral Report Module to Provide an Opportunity for Professional Identity Formation Early in the First Year

Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation. In support of findings of facts and conclusions of law about whether the divorcing couple has established a separation, some jurisdictions will ask whether the couple has lived in the same abode and, if so, will inquire about the divorcing couple’s roles and choices vis-à-vis one another—for example, preparing meals for one another or engaging socially with one another. Other jurisdictions will make explicit inquiries into whether a couple has had sex with one another. Probing into families’ living arrangements and adults’ sexual choices does real and particular harm to marginalized social groups, and doing so defies the liberty and privacy interests of families and couples. In explicating this litany of critiques, this project attempts to avoid the trap that family law scholarship can too easily fall into; namely, criticizing doctrine “on a low level of abstraction” and rushing to a proposed reform. This piece, therefore, offers a taxonomy of the harm that separate and apart requirements cause—paying particular attention to the ways in which these laws are classist, heteronormative, gendered, and racially charged—and illuminates how constitutionally precarious such laws are. The project is ambitious as it attempts to situate and expose the deep-seated problems of separate and apart requirements as reflective of the deep-seated flaws in family law jurisprudence generally. The piece offers a comprehensive analysis and investigation of separate and apart requirements, and it serves as an invitation to further conversation and exploration of the themes raised herein.

Based on the author’s practice experience as much as her scholarship, the proposal insists that where couples are struggling deep in the heart of the matter about their choices—the good ones and the mistakes—they do not need or desire a judicial officer to ask them to wait or to organize their life a certain way before allowing them to divorce. Nothing and no one is served by insisting on some normative view about what the end of a marriage looks like and requiring some time period for performance of that view. The proposal in this piece joins a growing chorus of practitioners, judges, and scholars talking about administrative divorces. The distinct voice in this piece advocates for administrative divorce as a procedural decoupling of divorce from any underlying or attendant economic and custody issues. The piece motivates this argument based on the premise that allowing families to proceed thusly will enhance the self-determination of families in transition and promote use of the courts when, and only when, the families determine that court involvement in matters of children and economics will improve their stability.

Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce

Reflecting back a decade later, what is the enduring significance of the Trayvon Martin case—a Black teenager whose life is violently cut short, and a legal system that accepted his death without consequence? The poet Elizabeth Alexander speaks of “The Trayvon Generation” of Black youth who have grown up in the haunting shadow of his killing, and the anguished parents who cannot protect their children from such a fate. America’s first Black president spoke for them: “When I think about this boy, I think about my own kids. If I had a son, he’d look like Trayvon,” Barack Obama told the nation. 

In its historical context, Martin’s fate fits squarely in the American tradition of legalized White vigilantism, embraced by a generous definition of self-defense in such cases, and most recently by Stand Your Ground laws greenlighting a “shoot first and ask questions later” response to a perceived (but not necessarily actual) threat. 

Neighborhood crime watch captain George Zimmerman identified the 158-pound dark-skinned high school junior leaving a convenience store with snacks as an intruder in his gated community. The ensuing confrontation ended when Zimmerman shot a single bullet in Trayvon’s heart from his semi-automatic handgun. As implausible as Zimmerman’s self-defense story was, it resonated with the all-White female jurors, who acquitted him of all charges—a verdict that can only be understood against the backdrop of the implicit bias, unconscious stereotyping, and deference to White-on-Black violence that insidiously infects our society.

The Legacy of Trayvon Martin—Neighborhood Watches, Vigilantes, Race, and Our Law of Self-Defense

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.

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.

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Policing the Danger Narrative

Anti-"CRT," A Century Old Tradition

Religious Groups, the Government, and the Pandemic: The Missing Voice of Religious Ethicists

Elizabeth Harriot Barons O’Connor (1749–1811)

Thirteen Books

Unshackling Cities

JRAD Redux: Judicial Recommendation Against Immigration Detention

The Multilateral Climate Regime

Antitrust and Race

Commentary on National Federation of Independent Business v. Sebelius

Keeping the Good Faith: YouTube, Fair Use, and the DMCA

iSpy Someone Getting an Abortion: The Use of Personal Data in the Post-Dobbs Era

Plurality Decisions and Prior Precedent

Making it Work for Workers: A Study on the Efficacy of the Massachusetts Domestic Workers Bill of Rights

Patenting Genetic Information

On Whose Terms? Power and Exploitation in Trade

Massachusetts Guide to Evidence: 2023 Edition

Identifying Modifiable Predictors of COVID-19 Vaccine Side Effects: A Machine Learning Approach

Integrating the Perspectives of Alumni Practitioners into the Oral Report Module to Provide an Opportunity for Professional Identity Formation Early in the First Year

Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce

The Legacy of Trayvon Martin—Neighborhood Watches, Vigilantes, Race, and Our Law of Self-Defense

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

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

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

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.repo-96qggn{color:inherit;text-align:left;font-weight:500;line-height:2.3rem;font-size:1.8rem;overflow-wrap:break-word;-webkit-box-orient:vertical;display:-webkit-box;-webkit-line-clamp:4;overflow:hidden;hyphens:auto;}.repo-96qggn:hover{color:inherit;}Policing the Danger Narrative

Policing the Danger Narrative