Online Essays
Below are published non-symposia essays from the B.U. Law Review Online, including invited responses, perspectives and student notes.
NIL Compliance
Josh Lens
103 B.U. L. Rev. Online 69 (2023).
The transformative name, image, and likeness (“NIL”) era of college athletics is in its infancy yet one cannot overstate its impact on college athletics. While student-athletes have largely benefited from NCAA rules changes permitting their newfound ability to earn remuneration from their NIL, uncertainty exists regarding the rules and enforcement of them.
While the NCAA’s guidelines regulating student-athletes’ use of their NIL are minimalist, they contain some restrictions applicable to student-athletes, university staff members, universities, and universities’ athletics supporters. Despite repeated threats, the NCAA has yet to enforce its NIL restrictions, resulting in confusion and upheaval…
Reasonable, Yet Suspicious: The Maryland Supreme Court Wrestles with the Paradox of Flight from Police
Aliza Hochman Bloom
103 B.U. L. Rev. Online 59 (2023).
Around noon on July 9, 2020, Mr. Tyrie Washington and a friend were standing in an alley in Northwest Baltimore. Upon seeing an approaching police car, they ran away. Mr. Washington maintained that he feared for his safety given the tenuous relationship between police and Black men, which in Baltimore had proven explosive after the 2015 police killing of Freddie Gray. Thus, he insisted that his reasonable, fear-based flight from police should not contribute to the “reasonable suspicion” required for those officers to stop and search him. In December, the Maryland Supreme Court conceded that Mr. Washington’s flight from police was a reasonable reaction amid public instances of police violence against young Black men, especially in Baltimore, and empirical evidence of racialized policing. While engaging with Mr. Washington’s arguments and those of courts that discount “flight from police” and “high-crime area” as factors in the reasonable suspicion calculus because of their racialized application, the court concluded that Mr. Washington’s unprovoked flight in a high-crime area gave officers the reasonable suspicion required…
Building a New Constitutional Jerusalem: A Review of The Antiracist Constitution
Aderson B. Francois
Invited Response: Aderson B. Francois, Building a New Constitutional Jerusalem: A Review of The Antiracist Constitution
102 B.U. L. Rev. Online 98 (2022).
Can the Fourth Amendment Keep People “Secure in their Persons”?
Bruce A. Green
Invited Response: Bruce A. Green, Can the Fourth Amendment Keep People “Secure in their Persons”? (2022).
102 B.U. L. Rev. Online 92 (2022).
Law and Culture
Tamar Frankel* & Tomasz Braun**
101 B.U. L. Rev. Online 157 (2021).
Boston University Law Review Online is proud to present an essay by our distinguished emeritus professor Tamar Frankel and her colleague Tomasz Braun. This piece, written in Professor Frankel’s distinctive and thought-provoking voice, is a sequel to her book, Living in Different Cultures, and examines how systems of law and culture relate to and affect each other.
Does Interest Convergence Today Offer Opportunities for the Working Class, Much As It Did for Minorities in the Fifties and Sixties?
Richard Delgado & Jean Stefancic
A Comment on Spencer Bowley
101 B.U. L. Rev. Online 148 (2021).
Delgado & Stefancic respond to Bowley’s article on class-based interest convergence in the United States. This response further explores the the ongoing class-forward movement and puts forward another theory for interest convergence based on Marxist economics.
Learning from History: Predicting the Development of Class-Based Interest Convergence
Spencer Bowley
101 B.U. L. Rev. Online 125 (2021).
In this article, Bowley applies the interest-convergence theory first posited by Derrick Bell to class-based issues in the United States. The first analysis of its kind, Bowley explores the tenuous relationship between the United States and China and predicts interest convergence between the upper-class and America’s poor.
Rehabilitation Under the Rehabilitation Act: The Case for Medication-Assisted Treatment in Federal Correctional Facilities
Jaclyn S. Tayabji
101 B.U. L. Rev. Online 79 (2021).
The Color Line: A Review and Reflection for Antiracist Scholars
Jasmine B. Gonzales Rose
101 B.U. L. Rev. Online 72 (2021).
In this comment on The Color Line by David Lyons, Gonzales Rose praises the insightful history of race and racism in the United States, while also critiquing the use of common conventions that antiracist authors should avoid. “I hope that antiracist authors and readers continue to supportively push each other to be thoughtful and inclusive in our use of language and analysis.”
Standing and Privacy Harms: A Critique of TransUnion v. Ramirez
Daniel J. Solove & Danielle Keats Citron
101 B.U. L. Rev. Online 62 (2021).
Through the standing doctrine, the U.S. Supreme Court has taken a new step toward severely limiting the effective enforcement of privacy laws. The recent Supreme Court decision, TransUnion v. Ramirez (U.S. June 25, 2021) revisits the issue of standing and privacy harms under the Fair Credit Reporting Act (FCRA) that began with Spokeo v. Robins, 132 S. Ct. 1441 (2012). In TransUnion, a group of plaintiffs sued TransUnion under FCRA for falsely labeling them as potential terrorists in their credit reports. The Court concluded that only some plaintiffs had standing – those whose credit reports were disseminated. Plaintiffs whose credit reports weren’t disseminated lacked a “concrete” injury and accordingly lacked standing – even though Congress explicitly granted them a private right of action to sue for violations like this and even though a jury had found that TransUnion was at fault.
In this essay, Professors Daniel J. Solove and Danielle Keats Citron engage in an extensive critique of the TransUnion case. They contend that existing standing doctrine incorrectly requires concrete harm. For most of U.S. history, standing required only an infringement on rights. Moreover, when assessing harm, the Court has a crabbed and inadequate understanding of privacy harms. Additionally, allowing courts to nullify private rights of action in federal privacy laws is a usurpation of legislative power that upends the compromises and balances that Congress establishes in laws. Private rights of action are essential enforcement mechanisms.
Beyond VAWA: Localism as an Argument for Full Tribal Criminal Jurisdiction
Deanna Tamborelli
100 B.U. L. Rev. Online 305 (2020).
In dismantling tribal jurisdiction over crimes committed by non-Natives and then returning limited jurisdiction in a piecemeal fashion, the federal government has stifled the ability of tribes to develop effective responses while further entrenching a white supremacist, colonial system over sovereign peoples. It is due time for the federal government to support these communities as they seek to heal and rebuild. […]
Keep the Federal Courts Great
Carl Tobias
100 B.U. L. Rev. Online 196 (2020).
Ever since Donald Trump began running for President, he has incessantly vowed to “make the federal judiciary great again” by deliberately seating conservative, young, and capable judicial nominees, a project which Republican senators and their leader, Mitch McConnell (R-KY), have decidedly embraced and now vigorously implement. The chief executive and McConnell now constantly remind the American people of their monumental success in nominating and confirming aspirants to the federal courts.[…]
“Alive but Still Not Free”: Nikki Addimando and Judicial Failure to Apply the Domestic Violence Survivors Justice Act
Christopher L. Hamilton
100 B.U. L. Rev. Online 174 (2020).
This Essay addresses the failure of the New York state judicial system to properly apply the Domestic Violence Survivors Justice Act (“DVSJA”), with devastating implications for those whom the law was intended to protect. In order to remedy this serious problem, this Essay proposes detailed considerations that state judges should contemplate when deciding whether to apply the DVSJA to a defendant’s sentencing.[…]
Rediscovering Jacobson in the Era of COVID-19
Wendy E. Parmet
100 B.U. L. Rev. Online 117 (2020).
On May 29, 2020, as states across the country continued to ease the social distancing measures that had been put in place to stem the spread of COVID-19, the Supreme Court in South Bay United Pentecostal Church v. Newsom, by a 5-4 vote, denied an emergency request to enjoin California Governor Gavin Newsom’s order limiting the number of worshippers at in-person religious services.[…]
Suing China Over COVID-19
Paul J. Larkin, Jr.
100 B.U. L. Rev. Online 91 (2020).
On April 21, 2020, the state of Missouri filed a lawsuit in the U.S. District Court for the Eastern District of Missouri against the People’s Republic of China (“PRC” or “China”) and various other parties. The lawsuit seeks damages from the defendants for their role in unleashing the COVID-19 pandemic, an action that, as the state has alleged, roiled the world for the last three months, put millions of people out of work, and killed thousands in the process.[…]
The Constitutional Case for State Power to Eliminate Faithless Electors
Tyler Creighton
Student Note
100 B.U. L. Rev. Online 57 (2020)
The 2016 election raised anew the prospect that the candidate who wins the most presidential electors in November might not be the candidate who receives the most electoral votes when the electors convene in their respective states in December or the candidate who Congress officially declares the next President when a joint session counts electoral votes in January. […]
For the archived essays of the BU Law Review Annex (the former name of the Boston University Law Review Online), please visit this page.