The June issue of Boston College Law Review is now available. The issue features two articles by outside authors as well as three student notes. Summaries of the five pieces can be found below. The full texts are also available on the BCLR website.
1. Rethinking Feres: Granting Access to Justice for Service Members by Professor Andrew F. Popper
Professor Popper’s Article discusses the Supreme Court’s 1950 decision in Feres v. United States and its interpretation of the Federal Tort Claims Act. In that case, the Court placed dramatic limits on civil tort claims brought by military service members who are injured “incident to service.” Citing sexual assault and medical malpractice as examples of such an injury, Professor Popper argues that Feres should be overruled and the FTCA amended to allow service members access to justice in Article III courts.
2. The Death Penalty and the Fundamental Right to Life by Professor Kevin M. Barry
Professor Barry's Article analyzes the existing precedent surrounding the death penalty and argues that in addition to challenging the death penalty under the Eighth Amendment, the death penalty should also be challenged under substantive due process. Professor Barry argues that the death penalty violates the fundamental right to life because it deprives the condemned of this right-to-life in violation of substantive due process and that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or abortion rights.
Student Notes
1. Problem with Your Bank Account? Tell It to the . . . Arbitrator? by Michael Koch
In his Note, Michael Koch discusses Congress’s repeal for the Consumer Financial Protection Bureau’s “Arbitration Rule” and its ramifications—consumers are nearly universally precluded from joining class-action claims against large financial institutions due to the widespread and largely unfettered use of class-action waivers in arbitration agreements. Michael’s Note argues that class-action waivers should be regulated to ensure that individuals with inferior bargaining power and legal resources are not subjected to poor treatment at the hands of their banks.
2. Promise-Induced False Confessions: Lessons from Promises in Another Context by Margaux Joselow
Margaux Joselow’s Note examines why our criminal justice system fails to recognize the coercive role played by promises of leniency in inducing confessions while it more readily acknowledges the coercive role such promises play in eliciting plea bargains. Her Note argues that jury instructions that help the jury better detect, understand, and weigh confession testimony can close the unwarranted gap between procedural safeguards governing promise-induced admissions of guilt during plea discussions and interrogations. Her Note also proposes a model instruction, which conveys the relevant scientific and legal principles in a way that will impact jurors’ verdicts in false confession cases.
3. The Need for Increased Possibility of Director Liability: Refusal to Dismiss In re Wells Fargo & Co. Shareholder Derivative Litigation, a Step in the Right Direction by Claudia Restrepo
In her Note, Claudia Restrepo focuses on the oversight liability doctrine and argues that it is applied too narrowly, at least at the motion to dismiss stage, to deter director misconduct and encourage adequate oversight by directors. Claudia uses the Wells Fargo corporate scandal and the directors’ failure of oversight as a case study and argues that the rare decision in In re Wells Fargo was a positive step that sends a firm message to directors that they cannot disregard their duties and expect complete protection from liability.
4. “Maybe Someone Dies”: The Dilemma of Domestic Terrorism and Internet Edge Provider Liability by Emily B. Tate
Emily B. Tate’s Note explores the intersection of far-right domestic terrorism and radicalization on the Internet. With the recent swell of domestic terror incidents in the United States, media attention has turned to social media and other online spaces where users ostensibly self-radicalize to political extremism. For those spaces that actively foster radicalization, evading liability for providing material support to terrorism has historically been easy, thanks to gaps in domestic terrorism law and Section 230 of the Communications Decency Act. This Note proposes a moderate solution of filling those gaps while preserving the strength of the CDA, thereby punishing only bad actors and leaving freedoms of the Internet untouched.
5. Bare Necessity: Simplifying the Standard for Admitting Showup Identifications by J.P. Christian Milde
In his Note, J.P. Christian Milde discusses the Supreme Court’s complex and unreliable test governing the admission of eyewitness identifications and proposes a simplified admissibility test for those identifications made using showup procedures. To contextualize his proposal, Christian surveys the stances of all fifty states and reviews the modern scientific understanding of memory and suggestion, concluding that courts should consider only whether a showup was necessary to decide the resulting identification’s admissibility. By synthesizing advancing science and existing law, Christian’s Note demonstrates that its proposed simplification is not only sound policy but is also permissible and advisable under current Supreme Court doctrine.