The April 2025 issue of Boston College Law Review is now available. The issue features聽four articles and three student notes. Summaries of the seven pieces can be found below. The full texts are also聽.
Articles
聽by Chesa Boudin & Eric S. Fish
The American criminal justice system faces a crisis of adjudication. Courts rarely decide facts, hear arguments, or hold adversary hearings. Trials are an endangered species. Convictions nearly always happen when defendants plead guilty pursuant to agreements. This crisis of adjudication undermines the system鈥檚 legitimacy. The rule of law has little purchase in a regime governed by guilty pleas. Legal rights are not asserted. The government鈥檚 evidence is not tested. The values of neutrality, transparency, and legality are sacrificed as power moves from the courtroom to the prosecutor鈥檚 office. And punishment leverage, not in-court presentation of evidence, dictates case outcomes. This has created a persistently high risk of wrongful convictions. It has also eroded the rule of law and facilitated the growth of mass incarceration. To address this crisis, academics and reformers have mostly focused on reviving the criminal jury trial. This Article proposes to reframe criminal procedure to emphasize robust pretrial adjudication. There are a variety of hearings and legal proceedings that can happen before a jury trial. These include grand juries, preliminary hearings, witness depositions, suppression hearings, and bench trials. In most American jurisdictions, these procedures are weak or nonexistent. But in some places, they are powerful. California has an unusually demanding grand jury process. Florida gives defendants broad rights to depose witnesses. North Carolina provides misdemeanor defendants both a bench trial and a subsequent jury trial. This Article examines these and other unique practices to propose a fresh approach to criminal adjudication. It should not be an all-or-nothing proposition that begins and ends with the jury trial. Adjudication is, at its core, the testing of evidence and law, before a neutral tribunal, conducted in public by professionals. And adjudication, thus understood, can be incorporated into the pretrial criminal process just as it is in civil cases. Robust pretrial adjudication serves many of the criminal trial鈥檚 essential functions鈥攑roducing evidence, creating transparency, imposing burdens, dignifying the parties, and preserving the rule of law. Such procedures can supplement the rarely exercised right to a jury trial. And, if made effective, they can help restore the power of courts in a system that has mostly abandoned adjudication.聽
by Charles Delmotte
Various tax scholars advocate for higher taxes on the wealthy to curb their influence on public policy. This 鈥減olitical economic鈥� case for redistribution has recently gained extra traction through the Law and Political Economy (LPE) movement. Although both tax and non-tax scholars defer to the tax system to implement higher taxes on the wealthy and reduce their political influence, the current literature lacks a comprehensive model of how this system operates. This Article fills that lacuna and offers a model of 鈥渢ax law capture鈥� that shows that the legislation and administration of tax law are systematically influenced to serve the interests of well-funded industries and economic players. A realistic analysis reveals that redistributive taxation may be subject to the very problem it seeks to remedy: well-intended tax schemes can exacerbate the influence of affluent taxpayers on the tax system, undermining their own redistributive potential. A deromanticized analysis reveals that such measures may expand the scope of private capture of tax law. This Article shows that whether redistributive taxation reduces the influence of the wealthy over the tax system, and thus effectively redistributes wealth, depends on how it is designed. Tax schemes that diminish the influence of the wealthy over the tax system are 鈥渞ule-based鈥� and minimize discretion in calculating tax liabilities. This Article revives the idea of a retrospective capital gains tax to meet these requirements. Under this measure, taxes are due at the point of realization, yet include an interest charge calculated on the deferred annual tax liability. This increased taxation on capital assets achieves redistribution without introducing discretionary elements or further entanglement with the government.
聽by Anna K. Jessurun, David H. Gans, Brianne J. Gorod
滨苍听Moore v. Harper, the Supreme Court confronted head on for the first time the so-called independent state legislature theory (ISLT), which posits that state legislatures have exclusive authority to enact laws and regulations governing federal elections and that those laws are not subject to state court judicial review pursuant to state constitutions. Although the Supreme Court resoundingly rejected the most robust version of ISLT in聽Moore, commentators have argued that language in that opinion opened a dangerous door to federal supervision of state election law. This Article argues that those claims are wrong. Under聽Moore, federal court review is only appropriate to prevent state courts from evading federal interests, and as聽Moore聽itself made clear, the federally protected interest under the Elections Clause is the prohibition of state courts 鈥渢ransgress[ing] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.鈥� Looking to the Court鈥檚 reasoning in聽Moore, as well as constitutional history and fundamental principles of state sovereignty, this Article argues that the ordinary bounds of judicial review are exceptionally broad, and there will virtually never be a case in which a state court transgresses those bounds in a way that amounts to an arrogation of power. The upshot, then, is that聽Moore聽did more than reject the essential premises of ISLT; it also made it extremely unlikely that any future ISLT claims will succeed.
聽by Vijay Raghavan
This Article offers a novel retheorization of consumer financial protection that surfaces its radical potential. That retheorization is motivated by two developments. The first is the rise of debtor movements over the last decade demanding the abolition or cancellation of debt, such as the recent national campaigns against student debt and medical debt. The second is an emerging view this Article identifies in sociological and legal scholarship, which understands consumer financial protection as in tension with the radical ambitions of debtor movements and neoliberal in its orientation: it operates to sustain market logics as opposed to contest them. This Article鈥檚 retheorization undermines this second, pessimistic view. It begins by recasting consumer financial protection as a response to market domination facilitated by the legal and institutional design of our financial system. It then traces the various legal and institutional forms this response took over the course of the twentieth century. Retracing this history through this lens reveals that consumer financial protection has functioned both to affirm and contest the logic of our financial system. Consumer financial protection鈥檚 role as a counter logic is sharpest when it has an institutional presence in financial market governance and leverages this presence to reallocate governing power and redistribute burdens in financial markets. And its role is weakest when it has little institutional presence in market governance and seeks to merely manage the costs of the financial system at its margins. This Article鈥檚 core argument is that consumer financial protection is justified and best functions as a counterweight to our regressive and antidemocratic institutional arrangements around money and banking.
Notes
聽by Millicent Ball
The United States is experiencing a youth mental health crisis associated with the rise in social media pervasiveness. As a result, state attorneys general, school districts, and individuals across the nation have sued major social media companies, alleging that their platforms are harmful to youth and are defective by design. These suits have culminated in a large multi-district litigation against the social media companies that operate the world鈥檚 largest social media platforms: Meta (Facebook and Instagram), Snap (Snapchat), ByteDance (TikTok), and Google (YouTube). In November of 2023, in In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, the U.S. District Court for the Northern District of California granted in part and denied in part the defendant social media companies鈥� motion to dismiss the plaintiffs鈥� product liability claims. The court held that 搂 230 of the Communications Decency Act of 1996 and the First Amendment of the U.S. Constitution barred some of the plaintiffs鈥� products liability claims but did not preclude others. Although 搂 230 has traditionally shielded social media companies from liability, products liability theory is an alternate cause of action that could help regulate online platforms. This Note argues that products liability law is an appropriate avenue for holding social media companies accountable for their role in the youth mental health crisis.
聽by Benjamin Fink
Many colleges and universities in America give admissions preferences to the children of alumni and relatives of donors. This practice helps colleges raise funds and cultivate a strong alumni network but results in drastic inequality in the admissions process for applicants without such connections. The pending Merit-based Educational Reforms and Institutional Transparency Act (MERIT Act) seeks to end legacy and donor preferences at all private universities receiving federal funding. Because the vast majority of private colleges accept federal funding, this legislation has the potential to be incredibly impactful in the college admissions process. To combat such legislation, the affected private colleges and universities may be able to raise First Amendment and Spending Clause challenges. A private college could argue that it is an expressive association entitled to First Amendment protection, and that setting funding conditions that alter its admissions practices unduly burdens its First Amendment rights. A college could also argue that a ban on legacy and donor preferences places an unconstitutional condition on it, which entirely limits its ability to pursue its mission as an institution. Finally, a college can argue that conditioning all existing federal student loan money on ending legacy and donor preferences is outside Congress鈥檚 Spending Clause power because too much money is at stake and the conditions further a policy goal not originally contemplated by the colleges. This Note discusses and assesses each of these First Amendment and Spending Clause challenges a college could raise. Further, this Note argues that there are strong political reasons for Congress to pass the MERIT Act, and that, with careful drafting, Congress can pass such legislation in a way that survives First Amendment and Spending Clause challenges.
聽by Nicolas Valdez
The COVID-19 pandemic and subsequent supply chain crunch brought a significant shortage to global semiconductor manufacturing, affecting a multitude of businesses and consumers. The Biden Administration recognized this serious issue with the passage of the CHIPS Act and the significant amount of investment allocated toward domestic semiconductor manufacturing. The Trump Administration has taken a different approach and has thus far relied on tariff applications to gain favorable policy concessions. At the Trump Administration鈥檚 fingertips, however, is the most modernized trade agreement in the world, the USMCA. Through the agreement, North America鈥攕pecifically the United States and Mexico鈥攊s primed to facilitate broad semiconductor investment throughout the continent. This Note argues that the USMCA should include a provision specific to semiconductor investment in the 2026 joint review. Additionally, this Note proposes that a semiconductor provision could take lessons from the maquiladora system of the past, existing USMCA provisions, NAFTA investment arbitration, and current geopolitical tension to guide its construction.