Boston College Law Review

Front Matter

For fifty years, people who can become pregnant have relied on the ability to access abortions as a part of ordinary, safe, and quality medical care. Abortions are low-risk medical procedures that provide people who can become pregnant with the ability to control their health and well-being. The Supreme Court stripped women of their reproductive freedom in holding that the constitutional right to privacy does not extend to abortion. This means that legislatures can subject women to the host of physical and fiscal consequences of pregnancy. Alternative legal strategies are needed to secure women’s ability to participate equally in society. Property rights protect property owners from undue interference at the hands of both private and public actors. This Note argues that providing women with a legally recognized property interest in their uteruses comports with a modern understanding of bodily autonomy, accords with present day uses of women’s reproductive capacities, and protects their personhood from undue governmental interference.

My Uterus, My Choice: Abortion Bans and Property Interests in the Female Body

The non-regression principle is a budding international jurisprudential precept holding that legal protections of public welfare and individual rights, once established, cannot be subjected to erosive roll backs. Over the last decade, several international jurists began to apply the doctrine in the more specific context of environmental law. France has explicitly incorporated the principle by statute, while Brazil has similarly adopted it by Supreme Court decision. Implementation of environmental non-regression comes at a crucial time. The non-regression principle is a promising tool for achieving climate solutions and, given the existential threats posed by human climate disruption, implementing the principle, domestically and abroad, is of crucial importance. It is particularly critical the United States acts decisively—it is the second largest polluter on earth.

An important question, then, is whether the non-regression principle could take root in the United States. This Note uses a potential methane pollution restriction as an example of how an anti-backsliding provision could realistically be made part of this nation’s post-Paris Agreement efforts to limit climate change. Statutes like the Energy Policy and Conservation Act and Clean Air Act already contain limited restrictions on regression, known as anti-backsliding provisions. These are first steps, but wider implementation is necessary to achieve the goals of the 2015 Paris Agreement on climate change. Broad constitutional and regulatory adoption of the non-regression principle in the near term are likely politically impractical in the United States. A statute codifying environmental non-regression may have the necessary legal foundation to withstand political challenges in court and become a significant legal tool in achieving crucial climate and environmental protection.

Protecting America from Itself: Can the Emerging Principle of Non-Regression Help the United States Resolve the Existential Threat of Climate Disaster?

Described as the “Wild West” by some commentators, the world of cryptocurrency is rapidly expanding faster than regulators can catch up. Because of this asymmetric growth, consumers are at risk of investing in fraudulent and deceptive platforms. Adding endorsements by celebrities, professional athletes, and social media influencers to the equation creates additional pitfalls for consumers. A lack of due diligence on the part of endorsers leads to significant damages and losses for trusting consumers. Regulating cryptocurrency and its advertisements is a relatively new area of the law. Nevertheless, parallels exist between the lack of due diligence in advertising cryptocurrency and in advertising health and medical products without substantiating the claim. Regarding the latter type of endorsement, the Federal Trade Commission (FTC) has cracked down on deceptive advertisements that cause harm to consumers. Current lawsuits allege that celebrity endorsers of cryptocurrency companies engaged in deceptive trade practices, violating state versions of the Federal Trade Commission Act. Historically, the FTC has only found the parent company liable in similar cases, rather than individual endorsers. This Note argues that increased regulation and enforcement actions by the FTC against individual endorsers is the most effective method to curtail deceptive advertising.

Consumers Caught in the Cryptocurrency Crisis: Why Celebrity Endorsers Should Not Escape Liability

On February 24, 2022, Russian troops invaded Ukraine. Over a year later, the war has claimed tens of thousands of lives and led to the displacement of millions. In Spring 2023, both Ukrainian and Russian forces prepared new offensives, while the United States committed to providing Ukraine with military tanks—a move that Russian officials had previously warned would constitute direct involvement in the war. While countries debated how to respond, we also witnessed the privatization of foreign policy as hundreds of companies around the world similarly sought to assist Ukraine or punish Russia using the tools of national foreign policy—humanitarian aid and economic sanctions. Companies assisted Ukraine by donating millions of dollars to relief organizations or offering aid directly to those fleeing the war. Other companies punished Russia by closing stores, postponing investments, and exiting the country altogether.

This Article explains that these individual business decisions illustrate a broader phenomenon of corporate foreign policy, which refers to business policies that use the traditional tools of national foreign policy to influence a government’s conduct towards another government or international organization. It develops a market framework to explain that corporate foreign policies result from the interaction of two sets of factors: demand factors, such as the preferences of governments, consumers, and investors; and supply factors, which refer to organizational, contractual, and regulatory factors that enable or inhibit the capacity of companies to meet those preferences. Supply factors would include: the business model used for Russian operations; contract provisions that enable suspension of performance obligations; availability of political risk insurance and international investment dispute resolution to absorb losses; and organizational preparedness for crisis response.

This Article makes three primary contributions to the study of foreign policy and international business transactions. First, it provides an analytical framework for understanding, evaluating, and even predicting whether companies will use a particular foreign policy in a crisis. Second, it uses this framework to analyze whether companies may similarly exit from China because of fears of conflict in the region. Third, the framework offers practical guidance to both policymakers and business executives on using foreign policy effectively in future crises. For policymakers, this framework explains that economic sanctions imposed by governments can encourage a second wave of private sanctions imposed by companies that magnify the economic, social, and political consequences of the former. This Article’s framework helps policymakers to predict the nature, breadth, and strength of these private sanctions so that they can better evaluate if and how to use sanctions. For executives, this Article explains the relevance of business models, contract design, and strategic partnerships for preparing for the next crisis. Many of these decisions are made decades before a crisis arises but can inhibit a company’s ability to respond when it does. It is therefore important to evaluate these decisions now in order to respond effectively in the future.

Corporate Foreign Policy in War

In many parts of the United States, the bail system is strikingly unfair in imposing burdensome, and often unmeetable, financial conditions on pretrial liberty even for low-risk defendants. Reforms that reduce or eliminate cash bail and lower pretrial detention rates have made progress in recent years but now face growing opposition, even in generally progressive jurisdictions such as San Francisco and New York City. One source of this opposition is rising concern about crime—particularly crime associated with the unhoused, who disproportionately suffer from mental illness, including substance abuse disorder. This is not a coincidence: one effect of a cash-bail system, underappreciated in the legal literature, is to incapacitate (for example, “get off the streets”) indigent, mentally ill defendants. Mentally ill individuals are arrested—often for low-level misdemeanors—and repeatedly cycle through the criminal justice system where they often fail to meet traditional pretrial release conditions. Indeed, three U.S. jails serve as the country’s largest psychiatric “treatment” facilities for mentally ill defendants. Pretrial justice systems that routinely jail the mentally ill thus serve as deeply inadequate substitutes for adequate mental health treatment. They mask the need for a more effective alternative, over-stretch the capacity of jails and prisons, and negatively impact mentally ill defendants through inadequate care. But despite the manifest shortcomings of this approach, it provides at least short-term relief to those affected by crime. And bail reforms that make it more difficult to “solve” the problem of mentally ill defendants by locking them up without providing alternative solutions—or at least identifying the underlying pathologies—are at risk of significant opposition, failure, or retrenchment.

As a first step toward addressing the mutually destructive relationship between pretrial justice and mental health treatment, this Article argues for a disaggregation of mentally ill and traditional defendants within the pretrial criminal justice system in all respects: in arrest decisions, in pretrial screening, in judges’ determinations of pretrial release and conditions for release, and in data collection and reporting. Moreover, bail reformers should call for increased mental health funding to accompany reductions in pretrial detention. This will address only a small facet of the nation’s massive mental health crisis. But it will help to produce a more just bail system for all and move toward ending the cycling of mentally ill defendants through the U.S. criminal justice system.

Bail and Mental Illness

Increased remote work has become a phenomenon in the aftermath of the COVID-19 pandemic. This has raised questions about the constitutional limitations that apply, or the congressional restrictions that should be applied, to state laws imposing an income tax on nonresident employees who telecommute from another state for an in-state employer. The state laws that tax nonresident teleworkers vary, leading to the prospect that some such employees could be double taxed by both the state of their employer and the state in which they are physically working, or taxed by their employer state when the state in which they are physically working does not itself impose a tax. Most outstanding scholarship has argued in favor of intervention by the Supreme Court or Congress to prevent states from imposing tax on employees who are physically working from another state. The Supreme Court has not considered the constitutionality of these taxes and denied a petition for certiorari of New Hampshire v. Massachusetts, a 2020 case that would have raised this issue. The Court’s precedent, however, makes clear that such state taxes should be upheld as constitutional. Two congressional bills proposed in 2020 and 2021 would have preempted state laws imposing a tax on employees physically working in another state, but these bills were not enacted. The decision to not enact the bills was appropriate because, if passed, such legislation would have created significant administrative issues, represented poor tax policy, and likely been found unconstitutional. The questions that have been raised by the state taxation of nonresident employees who telework from a state that is different from the state of their employer are complex and cannot be adequately addressed by either the Supreme Court or Congress—such questions are best left to the states’ political processes.

Post-Pandemic State Taxation of Nonresident Telecommuter Wages

Whenever there is a disaster, there are complaints of price gouging—that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, which share a few common characteristics. The laws vary considerably across jurisdictions, however, by what products, services, and sellers they cover, how long they last, and how strictly they limit price increases.

This Article assesses how the states changed their laws during, and in response to, the unprecedented challenges of the COVID-19 pandemic. It surveys fifty-six state and territorial jurisdictions, and finds that more than one-third made changes to their anti-gouging laws between 2020 and 2022, mostly to adopt new laws or strengthen existing regimes. Although the state laws faced the same challenges in responding to the unique circumstances of COVID-19, there was no marked trend toward convergence on a single best approach to regulating price gouging. Instead, the laws are increasingly diverse, which provides both opportunities for policy learning and more pressure for a uniform standard.

Although the states and territories overwhelmingly favor anti-gouging regulation, economists oppose them nearly as consistently. Critics blast the laws as unnecessary at best (because many businesses voluntarily freeze prices), and as harmful at worst, triggering and worsening consumer shortages and derailing important market forces that can speed up disaster recovery. This Article explores the criticism and support of anti-gouging regulation from both economic and moral perspectives. It concludes that critics and supporters alike have overlooked a potentially important impact of anti-gouging regulation: the possibility that such rules can help equalize the risk between wealthier and poorer communities that people will face unjustified price hikes in the event of an emergency.

Price Gouging, the Pandemic, and What Comes Next

Background: Bivalent mRNA vaccines were recommended since September 2022. However, coverage with a recent vaccine dose has been limited, and there are few robust estimates of bivalent VE against symptomatic SARS-CoV-2 infection (COVID-19). We estimated VE of a bivalent mRNA vaccine dose against COVID-19 among eligible U.S. healthcare personnel who had previously received monovalent mRNA vaccine doses.

Methods: We conducted a case-control study in 22 U.S. states, and enrolled healthcare personnel with COVID-19 (case-participants) or without COVID-19 (control-participants) during September 2022–May 2023. Participants were considered eligible for a bivalent mRNA dose if they had received 2–4 monovalent (ancestral-strain) mRNA vaccine doses, and were ≥67 days after the most recent vaccine dose. We estimated VE of a bivalent mRNA dose using conditional logistic regression, accounting for matching by region and four-week calendar period. We adjusted estimates for age group, sex, race and ethnicity, educational level, underlying health conditions, community COVID-19 exposure, prior SARS-CoV-2 infection, and days since the last monovalent mRNA dose.

Results: Among 3,647 healthcare personnel, 1,528 were included as case-participants and 2,119 as control-participants. Participants received their last monovalent mRNA dose a median of 404 days previously; 1,234 (33.8%) also received a bivalent mRNA dose a median of 93 days previously. Overall, VE of a bivalent dose was 34.1% (95% CI, 22.6%–43.9%) against COVID-19 and was similar by product, days since last monovalent dose, number of prior doses, age group, and presence of underlying health conditions. However, VE declined from 54.8% (95% CI, 40.7%–65.6%) after 7–59 days to 21.6% (95% CI 5.6%–34.9%) after ≥60 days.

Conclusions: Bivalent mRNA COVID-19 vaccines initially conferred approximately 55% protection against COVID-19 among U.S. healthcare personnel. However, protection waned after two months. These findings indicate moderate initial protection against symptomatic SARS-CoV-2 infection by remaining up-to-date with COVID-19 vaccines.

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Front Matter

My Uterus, My Choice: Abortion Bans and Property Interests in the Female Body

Protecting America from Itself: Can the Emerging Principle of Non-Regression Help the United States Resolve the Existential Threat of Climate Disaster?

Consumers Caught in the Cryptocurrency Crisis: Why Celebrity Endorsers Should Not Escape Liability

Corporate Foreign Policy in War

Bail and Mental Illness

Post-Pandemic State Taxation of Nonresident Telecommuter Wages

Price Gouging, the Pandemic, and What Comes Next

Effectiveness of a bivalent mRNA vaccine dose against symptomatic SARS-CoV-2 infection among U.S. Healthcare personnel, September 2022–May 2023

Correction: The Minderoo-Monaco Commission on Plastics and Human Health

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