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.

Boston College Law Review

BCLR Electronic Supplement

What Kind of Liar Are You? The Fifth Circuit's Broad Interpretation of Aggravated Identity Theft

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

Co-Cities by Sheila Foster and Christian Iaione (MIT Press, 2022) is a tour de force. They provide a rigorous empirical analysis of more than 200 global cities, and over 500 case studies within those metropolises, to reconceptualize “the city” for the contemporary age. (p. 24) While many scholars theorize or hypothesize “the city,” Foster and Iaione use surveys, qualitative interviews, detailed case studies, fieldwork, and geo mapping to derive a new and informed urban governance theory. Co-Cities evidences the value of a law and society approach to urban studies.

I highlight three unique contributions Co-Cities makes to our conception of the city, the commons, and new governance theory. I conclude by identifying a few areas that may serve as the basis for future research.

Boston College Law School Faculty Papers

Co-Cities: Reconceiving the City, the Commons, and New Governance Theory 

The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities re-mains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States, as examples of co-housing communities that create a new housing tenure—stewardship—and demonstrate the growing importance of community, co-management, sustainability, and flexibility in con-temporary property law. These villages’ property relationships challenge the predominance of individualized, exclusionary, long-term, fee simple ownership in contemporary property law and exemplify property theories such as progressive property theory, property as personhood theory, access versus ownership theories, and urban commons theories. These villages mitigate homelessness but also illustrate how communal relationships can provide more stability than traditional ownership during times of uncertainty. Due to increasing natural disasters and other increasingly unpredictable phenomena, municipalities may find these property forms adaptable and useful in minimizing housing insecurity and instability. This Article posits how localities can legalize stewardship and tiny homes villages for unhoused people. These insights reveal a new role for steward-ship and community building in American property law and theory.

Community in Property: Lessons from Tiny Homes Villages

The efficacy of the public-private partnership as a tool for social reform is the subject of continued scholarly and public debate. New governance theory, an increasingly popular form of jurisprudence, constructs an optimistic vision of stakeholder collaboration in public - private partnerships that justifies the use of the public-private partnership in regulatory reform. New governance scholars contend that recent governance trends such as devolution, deregulation, decentralization, and privatization create opportunities for previously marginalized stakeholders to more fully participate in public problem-solving. New governance scholars expect that both public and private stakeholders, with differing interests, skills and objectives, will effectively collaborate to solve public problems in the absence of traditional formal legal protections. New governance’s implicit promise is that traditionally marginalized stakeholders, such as poor public housing residents, will be empowered as a result of their participation in social reform. This Article examines stakeholder participation in Chicago’s landmark ten year HOPE VI public housing reform experiment as a test of these claims. Chicago’s reform process is a national example as other cities replicate Chicago’s model. Specifically, this Article examines the effect of social fissures along race, class and gender lines on the participation of public housing residents in Chicago’s urban reform plan. This micro-study of Chicago’s process reveals that empowered stakeholder participation is difficult to achieve under conditions of social conflict in the absence of traditional rights-based protections. This Article proposes a balance between 'hard-law' and 'soft-law' measures to provide a public law framework for future national HOPE VI reform. These recommendations may guide future new governance reform efforts that include traditionally marginalized stakeholders in public - private collaborations.

Stakeholder Participation in New Governance: Lessons From Chicago's Public Housing Reform Experiment

“There’s no place like home,” said Dorothy. Yet, millions of people in the United States may face eviction, foreclosure, or homelessness in 2021 and beyond. America is on the brink of an unprecedented housing crisis in the wake of Covid-19. The federal government, and various states and localities, have taken actions to avert a housing crisis in the aftermath of Covid 19. While these actions have undeniably helped mitigate widespread foreclosure and eviction crises, they do not fully address the more fundamental American housing challenge—an inadequate supply of affordable housing at all income levels, a longstanding problem that Covid-19 has only intensified.

This Article argues that tiny homes—homes that are less than 400 square feet—are an understudied and potentially big solution to the problem of housing insecurity, particularly during times of crisis, such as the Covid-19 pandemic. Now, increasing numbers of localities and nonprofits work in public and private partnerships to develop tiny homes villages as emergency housing or affordable housing in addition to housing for homeless people. The villages often consist of more than one tiny home and some villages can accommodate 350 tiny homes per site as well as families. Tiny homes villages, if designed properly, are an affordable and efficient way to add to the housing supply, providing residents with a community in which to advance their human flourishing as well as obtain shelter. Tiny homes will not work for every homeless person or in every community. Tiny homes villages should not replace all other forms of shelter for homeless people or all other forms of affordable housing. Localities, however, should develop the necessary building codes, zoning designations, land use categories, and approval processes to make living tiny legal and to permit tiny homes villages to mitigate housing insecurity.

Tiny Homes: A Big Solution to American Housing Insecurity

Book review of Law Student Professional Development and Formation: Bridging Law School, Student, and Employer Goals by Neil W. Hamilton and Louis D. Bilionis

This chapter introduces and analyzes the enormous number and variety of international instruments addressing the regulation of hazardous substances from consumer products to manufacturing installations. International authorities are categorized according to regulatory theory, ranging from hazard identification and testing to disposal. Other regulatory approaches include limitations on pollutant releases and prevention of and response to industrial accidents. Multilateral norms originating from global and regional institutions, UN specialized agencies, and non-UN organizations are analyzed as well. The piece addresses both “hard” (binding or conventional) and “soft” (nonbinding) instruments, correlating legal form with policy purpose.

International Law Governing Chemical Risk Assessment and Management

Ever the contrarian, Professor Wilmarth’s proposal for a new Glass-Steagall is still too much for many to stomach. Numerous otherwise sympathetic readers (not to mention Wall Street and its lobbying forces on K Street) shrink away from his bold structural reforms. Yet, unlike in the 1990s, his ideas have recently gained traction in high quarters. In 2016, the platforms for the Democratic and Republican parties both supported restoring Glass-Steagall. The following year, U.S. Senators Elizabeth Warren (D-Mass.), John McCain (R-Ariz.), Maria Cantwell (D-Wash.), and Angus King (I-Maine), reached across the aisle to introduce the “21st Century Glass-Steagall Act.” While a new Glass-Steagall Act is not yet upon us, it has ascended to mainstream policy debate. I doubt that it would have reached this point but for Professor Wilmarth’s powers of insight, vision, persuasion, and indefatigable persistence. Although he has retired from his faculty in name, Professor Wilmarth continues to fight for the enactment of a new Glass-Steagall Act. Our nation is better off for it.

Foreword: Arthur E. Wilmarth, Jr., A Scholar of Uncommon Conviction, Integrity, and Boldness

Due to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers’ bottom line. “Worker power” is workers’ ability to obtain higher wages and better working conditions. While the antitrust agencies have just begun developing policy and enforcement strategies to regulate employer monopsony, broader government policies that impact market forces, the formation of labor market institutions, and workers’ voices and exit options also play a defining role in shaping worker power relative to employers. For example, in addition to antitrust enforcement, worker power can be enhanced by labor agencies’ regulation of employer/employee status, wage and working condition floors, and workers’ collective action. Worker power can also be enhanced by agencies administering social safety net protections and influencing labor market tightness through monetary policy.

Scholars have yet to assess how federal agencies, whose statutory authority and regulatory purview impact worker power, could best direct their authority, regulatory tools, and expertise towards labor market regulation in the presence of employer monopsony power. This Essay outlines the comparative advantages of federal agencies’ regulations impacting worker power. It then develops a checklist of worker power indicators for agencies to track and operationalize in high-priority policy and enforcement areas and offers a broader worker power agenda through a whole-of government approach involving interagency coordination to protect and strengthen workers’ voice and exit options.

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