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. 

Boston College Law School Faculty Papers

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.

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.

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