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 …

Who Owns The Heat? Property Rights In Geothermal Energy, Gabriel Eckstein

Faculty Scholarship

Landowners can have ownership claims to oil, gas, water, and other tangible natural resources located in their subsoil. But can they also claim rights to the thermal energy found below their land? With 50,000 times more heat energy within the top 10,000 meters (around 33,000 feet) of the Earth’s surface than contained in all of the world’s oil and natural gas resources combined, geothermal energy is a tremendously promising, clean, and renewable energy resource. Yet, ambiguities in property rights related to the development and ownership of geothermal energy resources raise questions about who is entitled to benefit from that potential. …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

Guide To Sec And Business Open Source Corporate Intelligence, Lawrence J. Trautman, Brian Elzweig, Neal F. Newman

Faculty Scholarship

An agency of the U.S. intelligence community observes, "The explosion of open source intelligence (OSINT) in recent years has transformed how governments and people around the world consume and process information about society and global issues." It is likely that "We all use open-source and probably don't even realize it, but we also use it for different reasons. You might use open-source information to do a credibility check and to find out more about the person selling you something on Facebook marketplace." Others "may research someone… met on a dating app or before hiring someone for a job." Every use …

The End Of The U.S.-Backed International Order And The Future Of International Law, Monica Hakimi, Jacob Katz Cogan

Faculty Scholarship

The international order that the United States has for decades led and maintained is undergoing dramatic change. In this Essay, we explain that international law during this period was constituted with, and dependent on, U.S. power; that the two became (in odd-couple fashion) entwined together; and that, as the international order changes, the international legal system, its content and its architecture, will also inevitably change.

Legal Market Decartelization, Milan Markovic, Nuno Garoupa

Faculty Scholarship

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization - the weakening of the lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led …

Capital Formation, The Sec, And Accredited Investors, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

Protecting the investing public, while simultaneously facilitating the efficient flow of capital needed by all new and growing businesses continues as a primary responsibility of the U.S. Securities and Exchange Commission (SEC). Enhancing the capital formation process is a necessary step in the creation of jobs and growth of any economy. Central to the SEC’s regulatory schematic is the proposition that some particularly sophisticated and wealthy investors require less protection than those with less knowledge, experience, and resources. During December 2023, for just the third time, the SEC staff issued a report examining the status of the natural person accredited …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

Micro-Costs, Kiel Brennan-Marquez, Brendan S. Maher

Faculty Scholarship

The modern world is filled with tiny attentional impositions (cognitiveasks) that inflict small mental burdens (micro-costs) on virtually everyone, everywhere, all the time. Micro-costs make life worse, and everybody knows it. They sap collective energy; they lead to worse decisions; they exacerbate inequality; and they contribute to an overall sense of "mismanagement" in the world, a sentiment that readily pairs with destructive political impulses.

Yet the law has essentially ignored micro-costs-until now. In what follows, we construct a theory of micro-costs that gives the phenomenon analytic shape and charts a path forward for reform. Drawing on the insights of philosophy, …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

Faculty Scholarship

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses a third line of arguments—harmonization-based arguments—and identifies select instances …

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 …

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 …

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 …

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 …

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, …

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 …

Law And Historical Materialism, Jeremy K. Kessler

Faculty Scholarship

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those …

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. …

Improving The Transparency Of Legal Measurement In Health Policy Evaluation—A Guide For Researchers, Reviewers, And Editors, Benjamin A. Barsky, Alina Schnake-Mahl, Cason D. Schmit, Scott Burris

Faculty Scholarship

Advances in quantitative research methods have led to acceptance that well-designed observational studies can enable causal inferences about the effects of policy interventions on health. Indeed, JAMA recently announced exploring a range of study designs for which causal interpretations may be made in JAMA Network journals. This development is welcome for research on the potential health effects of laws—including statutes, regulations, executive orders, formal agency guidance, and other documents that purport to require compliance with rules or standards—given that they are rarely amenable to evaluation using experimental methods. As researchers, reviewers, and editors refine criteria for assessing the appropriateness of …

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 …

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 …

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. …

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 …

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 …