Digital Commons Network^™

The Restatement Of Children And The Law: Modern Regulation In A Developmental Framework, Elizabeth S. Scott

Faculty Scholarship

In May 2024, the membership of the American Law Institute approved the Restatement of Children and the Law, the first Restatement to focus on the law regulating children and families. The combined efforts of five Reporters (Elizabeth Scott, Reporter, and Richard Bonnie, Emily Buss, Clare Huntington and Solangel Maldonado, Associate Reporters), working for almost nine years, this new Restatement covers most of the legal landscape of American law's relationship to children. It is organized in four Parts: Part I, Children in Families, deals with parental rights and authority and state intervention in families; Part II, Children in Schools, covers children's …

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Faculty Scholarship

Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its …

U.S. Territories And The Criminal Law Curriculum, Emmanuel Hiram Arnaud

Faculty Scholarship

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the …

Working With Statutes, Anya Bernstein, Cristina Rodriguez

Faculty Scholarship

In its decision overruling the Chevron doctrine—which directed judges to accept an agency’s reasonable interpretation of ambiguous statutory language—the Supreme Court declares: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” This Article shows why this statement exhibits a profoundly blinkered judicial hubris. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows agencies’ special, indeed unique, competence in working with statutes to make democratic enactments real.

Agencies, we show, act as a statute’s custodians, managing the statutory regime over a life cycle that exceeds any single governing coalition. Borrowing ideas from private law, …

Response To Petition For Rehearing En Banc, Felicia M. Sonmez V. Wp Company Llc Et Al, Madeline H. Meth, Brian Wolfman, Becca Steinberg, Regina Wong, Elizabeth Brownstein, Nathaniel Allen Deacon

Faculty Scholarship

Felicia Sonmez alleges that the Washington Post violated the D.C. Human Rights Act by banning her from covering certain stories because she is a woman and a sexual-assault survivor. Op. 2-3. After finding Sonmez’s detailed allegations plausible, a panel of this Court rejected as premature the Post’s First Amendment defense that its decision was driven not by discrimination but by a desire to maintain an appearance of objectivity. Op. 4. Because “what actually motivated the Post editors to impose the bans on Sonmez is a factual question,” the panel held, the Post’s First Amendment defense could not be resolved on …

Promises, Promises: Understanding Claims Made In Social Robot Consumer Experiences, Johanna Gunawan, Sarah Elizabeth Gillespie, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Social robots are a class of emerging smart consumer electronics devices that promise sophisticated experiences featuring emotive capabilities, artificial intelligence, conversational interaction, and more. With unique risk factors like emotional attachment, little is known on how social robots communicate these promises to consumers and whether they adequately deliver upon them within their overall product experiences prior to and during user interaction.

Animated by a consumer protection lens, this paper systematically investigates manufacturer claims made for four commercially available social robots, evaluating these claims against the provided user experience and consumer reviews. We find that social robots vary widely in the …

The Lost English Roots Of Notice-And-Comment Rulemaking, Rephael G. Stern

Faculty Scholarship

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth …

Sexual And Reproductive Health & Rights: Advances And Setbacks, Aziza Ahmed, Alicia Ely Yamin, Sofia Gruskin

Faculty Scholarship

This article first describes shifts in human rights law that have led to improvements in the realization of sexual and reproductive health and rights (SRHR) over the last decade. The article does so, however, with careful attention to the structural factors beyond formal legal mechanisms that may undermine the ability of governments, even with the best of intentions, to fully develop the necessary robust health and justice systems. Second, this article considers two additional factors: the political economy factors that enable or limit the ability of States to realize SRHR, as well as the growing evidence base that supports positive …

Taking Revolution Seriously, Zohra Ahmed

Faculty Scholarship

Every so often, a prison strike will make national news, as it did in 2014, 2016, and 2018. ¹ The media will focus on the atrocious conditions of confinement; the unchecked violence; the wages numerated in pennies; and the state’s indifference to the strikers’ modest demands for food, medical care, and human contact.

Orisanmi Burton’s² book, Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt, urges us to process such reporting with a healthy dose of skepticism. What if prison rebellions were telling us something else, something even more important? What if they were …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

Faculty Scholarship

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

Behavior Of Rio Sao Francisco Piranhas In Response To Changes In Space And Density, Ronald G. Oldfield, Josie E. Thal, Kristen E. Lukas

Faculty Scholarship

Previous observations of Rio Sao Francisco piranhas (Pygocentrus piraya) at Cleveland Metroparks Zoo revealed frequent aggressive interactions, which were associated with the injury and death of some individuals. Fishes are known to increase aggressive behavior when available space is limited. We compared the behavior of the piranhas longitudinally across three different space/density conditions: (1) in a group held in a small aquarium before the death of one individual, (2) in the same group after the death of one individual, (3) and in one individual of the group after it was later moved into a larger, multispecies aquarium. In the smaller …

Personalizing And Decolonizing General Education: A Case Study In Gamifying Global Art History Curriculum, James Hutson, Trent Olsen, Robyne Elder

Faculty Scholarship

This study explores the transformation of general education art history courses at a liberal arts college, shifting from Eurocentric surveys to a decolonized, gamified, and student-centered curriculum. Through a longitudinal mixed-methods design, the research evaluates the integration of global narratives and innovative teaching strategies to enhance student engagement and global competencies. Data from pre- and post-implementation surveys with faculty, students, and instructional designers demonstrate significant improvements in student satisfaction, cultural openness, and engagement with global art. Challenges include navigating demographic skews, addressing the complexity of gamified structures, and refining assignment instructions. Findings highlight the value of curriculum redesigns that promote …

Distributed Tikhonov Regularization For Ill-Posed Inverse Problems From A Bayesian Perspective, D. Calvetti, E. Somersalo

Faculty Scholarship

In this article, we exploit the similarities between Tikhonov regularization and Bayesian hierarchical models to propose a regularization scheme that acts like a distributed Tikhonov regularization where the amount of regularization varies from component to component, and a computationally efficient numerical scheme that is suitable for large-scale problems. In the standard formulation, Tikhonov regularization compensates for the inherent ill-conditioning of linear inverse problems by augmenting the data fidelity term measuring the mismatch between the data and the model output with a scaled penalty functional. The selection of the scaling of the penalty functional is the core problem in Tikhonov regularization. …

Global Aging & Geriatric Experiments In Bipolar Disorder (Gage-Bd): Building A Global Consortium Benefiting People With Bipolar Disorder In Later Life, Martha Sajatovic

Faculty Scholarship

Purpose of Review: Findings from the Global Aging & Geriatric Experiments in Bipolar Disorder (GAGE-BD) project, including sociodemographic and clinical information from older age bipolar disorder (OABD) and healthy participants around the globe (approximately N = 5000) were reviewed. Data was collected in multiple waves to create a large integrated dataset. Recent Findings: BD does not seem to fade with age. BD subtype and early/late onset did not show significant differences in daily functioning. Physical comorbidities were more frequent in OABD compared with controls. Women with OABD had an earlier age at onset and more psychiatric hospitalizations. Summary: GAGE-BD is …

Anti-Adamts13 Autoantibodies In Immune-Mediated Thrombotic Thrombocytopenic Purpura, Robert W. Maitta

Faculty Scholarship

Autoantibodies to ADAMTS13 are at the center of pathology of the immune-mediated thrombotic thrombocytopenic purpura. These autoantibodies can be either inhibitory (enzymatic function) or non-inhibitory, resulting in protein depletion. Under normal physiologic conditions, antibodies are generated in response to foreign antigens, which can include infectious agents; however, these antibodies may at times cross-react with self-epitopes. This is one of the possible mechanisms mediating formation of anti-ADAMTS13 autoantibodies. The process known as “antigenic mimicry” may be responsible for the development of these autoantibodies that recognize and bind cryptic epitopes in ADAMTS13, disrupting its enzymatic function over ultra large von Willebrand factor …

Human Mesenchymal Stem Cell Therapy: Potential Advances For Reducing Cystic Fibrosis Infection And Organ Inflammation, Tracey L. Bonfield, Hillard M. Lazarus

Faculty Scholarship

Innovation in cystic fibrosis (CF) supportive care, including implementing new antimicrobial agents, improved physiotherapy, and highly effective modulators therapy, has advanced patient survival into the 4th and 5th decades of life. However, even with these remarkable improvements in therapy, CF patients continue to suffer from pulmonary infection and other visceral organ complications associated with long-term deficient cystic fibrosis transmembrane conductance regulator (CFTR) expression. Human mesenchymal stem cells (MSCs) have been utilized in tissue engineering based upon their capacity to provide structural components of mesenchymal tissues. An alternative role of MSCs, however is their versatile utilization as cell-based infusion powerhouses due …

Reclaiming Abortion As A Moral—And Religious—Decision, Linda C. Mcclain

Faculty Scholarship

Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev. 177 (2023).

In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.”1 Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. …

Petition For Initial Hearing En Banc, United States V. Michael Norwood, Becca Steinberg, Brian Wolfman, Regina Wong, Madeline H. Meth, Sara Brizio, Elizabeth Brownstein, Shreya Sarin

Faculty Scholarship

This appeal involves a question of exceptional importance because it implicates binding circuit precedent that directly conflicts with the United States Sentencing Commission’s exercise of statutorily delegated authority. Congress expressly charged the Commission with promulgating policy statements and guidelines establishing, among other things, a framework governing compassionate release of federal prisoners. 28 U.S.C. § 994(a), (t). So, when Congress provided that district courts could consider a sentence reduction if warranted by “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A), Congress did not define that phrase. Instead, it directed the Commission to do so. 28 U.S.C. § 994(t).

The Commission did …

Reply Brief For Plaintiff-Appellant, Jane Roe V. Marshall University Board Of Governors, Ryan M. Donovan, J. Zak Ritchie, Madeline H. Meth, Gregory Bowe, Erin Hunter, Sarah Monahan

Faculty Scholarship

Marshall does not dispute that Jane Roe’s experience as a student there was marred by fellow-student John Doe’s repeated sexual harassment. Doe’s harassment of Roe escalated on September 3, 2022, when he sexually assaulted her at a Marshall-football-watch party near campus. Instead of supporting Roe to confront the assault’s aftermath or the lingering on campus hostile environment, Marshall punished her, pretextually shuffling her through an investigation riddled with procedural deficits, in an attempt to cover its tracks.

Marshall argues it isn’t liable because it lacks control over all off-campus sexual assaults. But it undermines itself by admitting it exercised control …

Pirfenidone Delivery By Blow-Molded Pcl Nanofiber Mat To Reduce Collagen Synthesis By Fibroblasts, Maximilian Zernic, Maryo Kohen, Faruk H. Orge, Amel Ahmed, Ozan Akkus

Faculty Scholarship

Elevated intraocular pressure (IOP) during glaucoma is sometimes mitigated by insertion of glaucoma drainage devices (GDD). Excessive fibrosis around GDD plates may confine drainage and requiring revision surgeries in some patients. Pirfenidone (PFD) is an FDA approved drug to treat lung fibrosis, and it may be effective in limiting capsule formation around the GDD. To enable this, we aimed to develop a polymeric GDD encasement sheath that can sustainably release PFD to reduce fibrous capsule formation. The PFD-doped sheath was manufactured by blow molding of (poly)caprolactone (PCL). We investigated the effects of PCL concentration, spray distance, and molecular weight on …

Existential Threats And Deterrence: Japan’S Legal Pathway To Enhanced Collective Security In Asia, Nobuhisa Ishizuka

Faculty Scholarship

With the Japanese Cabinet’s decision in December 2022 to comprehensively upgrade Japan’s security posture, and its rapid build-up of its defense capabilities, Japan’s role in Asia’s security architecture has been undergoing a fundamental shift. This article places Japan’s 2015 Peace and Security Legislation in the context of the U.N. collective security system and argues that its most significant achievement has been to expand Japan’s power to engage more proactively in the Asian collective security order. To date, commentators have focused on the legislation’s role in expanding the Japanese constitution’s limitations on the use of force to permit collective self-defense. This …

Public Funds, Public Functions, Private Actors: The Cognitive Dissonance Of Us Health Law, William M. Sage

Faculty Scholarship

This chapter begins with the evolution of American medicine from a “sovereign” self-regulating profession focused on direct patient service to a large industry that serves the social sector but that, because of its professional heritage, receives extensive public subsidies without equivalent public accountability. Next, the chapter identifies regulatory dynamics in American health care governance that structurally discourage movement from the prevailing, if dissonant, private law framework to one explicitly grounded in public law. The chapter concludes by highlighting the challenges and opportunities inherent in a private law approach to what is intuitively a public law domain.

Optimal Real-Time Review Standards: Implications For Law Enforcement And Competitive Games, Murat C. Mungan

Faculty Scholarship

Real-time review systems are frequently used in various sports to monitor the decisions of referees and correct their mistakes. Interventions through these systems cause delays in games, which are perceived as being costly. This makes it optimal for these review systems to interfere with the decisions of the referee less frequently than would minimize the costs of decision errors, which I formalize through an analysis of the VAR system in football. This analysis also reveals that optimal review standards ought to be laxer when an important event (e.g., a goal) occurs between the position in which the potential error took …

Climate Change Litigation In New York, Michael B. Gerrard

Faculty Scholarship

Numerous lawsuits have been brought in the federal and state courts in New York concerning climate change. Some were under two important state statutes on the subject – the Climate Leadership and Community Protection Act of 2019 (CLCPA)and New York Climate Superfund Act of 2024. Others are brought under various common law, consumer protection, securities, and other theories. This column describes the most important of these cases.

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

Faculty Scholarship

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …

Shadow Banking And Securities Law, Gabriel Rauterberg, Jeffery Y. Zhang

Faculty Scholarship

Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but fall outside the scope of banking regulation — aptly termed “shadow banks” — were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem: extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through a different route …

Celebrating 70 Years Of Health Law At Bu, Christopher Robertson, Elizabeth Mccuskey, Aziza Ahmed, Dionne Lomax, Kathryn Zeiler, Dianne Mccarthy, Laura Stephens, Michael Ulrich, Lawrence Vernaglia, Danielle Pelfrey Duryea, Nicole Huberfeld, Kevin Outterson

Faculty Scholarship

This essay celebrates the BU Health Law Program upon its 70th anniversary, offering reflections on the founders of the program, Fran Miller, George Annas, and Wendy Mariner (“FGW,” endearingly), and their contributions to the field.

Current faculty offer reflections, including: Several speak to scholarly research, including Elizabeth McCuskey on health care finance, Aziza Ahmed on human rights, Dionne Lomax on antitrust, Christopher Robertson on trust, and Kathy Zeiler on the marketplace. Other contributors speak to the student experience, with Dianne McCarthy on mentorship, Laura Stephens on demanding excellence, Michael Ulrich on teaching, and Larry Vernaglia on merging law and public …

Performing Protest, Performing Memory: Speech Act Theory And January 6, Mary Lynne Gasaway Hill

Faculty Scholarship

In daily life, memory performs a staggering array of tasks. It offers reassurance, validation, legitimation, and approval. It transgresses boundaries and polices them. It confirms understandings and undermines them. It warms our hearts and chills our blood. In the realm of protest, as this article will show, memory works through intentional language use. In the context of activism, acts of memory are often performative: they aim not just to restate the status quo, but to change something about it. This chapter operationalises J.L. Austin’s Speech Act Theory (1994, SAT) as a lens through which to examine how the contentious discourse …

Super-Resolution Imaging Reveals Resistance To Mass Transfer In Functionalized Stationary Phases, Ricardo Monge Neria, Muhammad Zeeshan, Aman Kapoor, Tae Kyong John Kim, Nichole Hoven, Jeffrey S. Pigott, Burcu Gurkan, Christine E. Duval, Lydia Kisley

Faculty Scholarship

Chemical separations are costly in terms of energy, time, and money. Separation methods are optimized with inefficient trial-and-error approaches that lack insight into the molecular dynamics that lead to the success or failure of a separation and, hence, ways to improve the process. We perform super-resolution imaging of fluorescent analytes in five different commercial liquid chromatography materials. Unexpectedly, we observe that chemical functionalization can block more than 50% of the material’s porous interior, rendering it inaccessible to small-molecule analytes. Only in situ imaging unveils the inaccessibility when compared to the industry-accepted ex situ characterization methods. Selectively removing some of the …

Super-Resolution Imaging Reveals Resistance To Mass Transfer In Functionalized Stationary Phases, Ricardo Monge Neria, Muhammad Zeeshan, Aman Kapoor, Tae Kyong John Kim, Nichole Hoven, Jeffrey Pigott, Burcu Gurkan, Christine Duval, Lydia Kisley

Faculty Scholarship

Chemical separations are costly in terms of energy, time, and money. Separation methods are optimized with inefficient trial-and-error approaches that lack insight into the molecular dynamics that lead to the success or failure of a separation and, hence, ways to improve the process. We perform super-resolution imaging of fluorescent analytes in five different commercial liquid chromatography materials. Unexpectedly, we observe that chemical functionalization can block more than 50% of the material’s porous interior, rendering it inaccessible to small-molecule analytes. Only in situ imaging unveils the inaccessibility when compared to the industry-accepted ex situ characterization methods. Selectively removing some of the …