Law Commons^™

Understanding Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan

Faculty Scholarship

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

Exorcising Hobbes's Ghost: A Future For Constitutional And International Law, Monica Hakimi

Faculty Scholarship

Daryl Levinson wants to liberate constitutional law from the ghost of Thomas Hobbes. More than 350 years ago, Hobbes advanced a conception of law that, for all the efforts to move past it, continues to resonate. In the strictest iteration of the Hobbesian conception, law cannot exist apart from Leviathan, a sovereign state that is the “sole source of legal authority” in a defined territory. As the only possible source of law, Leviathan cannot itself be subject to law. “[I]t exercise[s] legally limitless power over its citizens and interact[s] with other Leviathans in a lawless international arena”. It is also …

The Limits And Promise Of Global Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos

Faculty Scholarship

A large body of evidence suggests that open, competitive markets are a key driver of economic development. In recognition of this fact, many of the world’s leading economies not only adopted their own antitrust laws to promote competition, but they also urged developing countries around the world to do the same. This resulted in a remarkable proliferation of global antitrust law over the last several decades. Many studies have empirically examined the effect of this development, and, consistent with the hopes of policymakers, they have largely found that adopting antitrust laws produces positive economic outcomes.

In this Article, we reassess …

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 …

Book Review: How To Set Up And Run A Law Clinic, Peggy Maisel, Paul R. Tremblay

Faculty Scholarship

This book answers many questions for those tasked with deciding whether and how to fund a law school clinic. It also provides metrics by which to evaluate the operations of a clinic. And finally, this book addresses not just how best to run a clinic, but in many ways how best to deliver legal services to a community in great need of legal help, whether through a law school program or in the neighborhood. It answers questions every legal aid office in the world with limited resources must answer: how to choose clients, how to decide which services the clients …

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 …

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. …

Teaching Around Generative Ai Plagiarism Risks, Nancy C. Marcus

Faculty Scholarship

Much has been written and said about generative AI's potential uses and misuses by lawyers and law students in the past year. This essay does not rehash the many ongoing discourses about whether, how, and to what extent generative AI (GenAI) can be used for and taught in legal writing courses. Rather, this essay is written under the assumption that, at least to some extent early on in the law school experience, some professors don't want 1L legal writing students using GenAI to draft legal memoranda and briefs for them. As the American Bar Association's Formal Ethics Opinion 512 warns, …

The Extraordinary Drought Provision And The Future Of The Rio Grande Water Deliveries Under The 1944 Us–Mexico Water Treaty: An Exploratory Policy Analysis, Rosario Sanchez, Stephen P. Mumme, Gabriel Eckstein

Faculty Scholarship

The ‘extraordinary drought’ provision contained in the legal framework governing water allocation between Mexico and the United States has been applied differently on the Colorado River, Upper Rio Grande, and Lower Rio Grande. While the provision has been interpreted to require proportional water allocation reductions during droughts for both parties on the Colorado and Upper Rio Grande, it has been applied very differently on the Lower Rio Grande where it binds Mexico to make up delivery shortfalls in subsequent cycles. Given climatic, economic, and population pressures in the Lower Rio Grande basin, application of the ‘extraordinary drought’ provision requires reconsideration.

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 …

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 …

Legislating For The Future, Jonathan S. Gould, Rory Van Loo

Faculty Scholarship

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.

We first examine Congress as …

Reassessing Corporate Philanthropy From A Tax Perspective, David I. Walker

Faculty Scholarship

U.S. corporations make and deduct charitable contributions in excess of $20 billion annually. This Article reassesses corporate philanthropy from a tax perspective, asking first whether the federal tax subsidy for corporate philanthropy is greater than the subsidy for the alternative stakeholder philanthropy, as some commentators have previously found. The answer: it depends. The relative degree of subsidy depends on corporate and individual tax rates, obviously, but also on the incidence of corporate philanthropy, i.e., who bears the cost, which is generally unclear, as well as other details, such as whether individual stakeholders itemize deductions. At current tax rates, however, any …

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 …

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 Investment Companies, William A. Birdthistle, Gabriel Rauterberg, Jeffery Y. Zhang

Faculty Scholarship

Stablecoins are cryptocurrencies designed to track the value of fiat currency, most commonly the U.S. dollar. Over the past decade, they have grown from a niche innovation into the primary gateway between crypto markets and the traditional financial system, with daily trading volumes exceeding $100 billion. Despite their scale and centrality, stablecoin issuers occupy an uncertain and increasingly contested regulatory space.

This Article argues that the largest stablecoin issuers — such as Circle and Tether— are best understood not as banks or payments firms, but as investment companies under the Investment Company Act of 1940. As a matter of statutory …

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 …

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.

Mainstreaming Parafamily, Elizabeth F. Emens

Faculty Scholarship

In Parafamily, Chen and Mulligan have managed to cover vast terrain, to catalogue important developments in law, to canvass insights from generations of thinkers, and to propose an ambitious yet pragmatic approach to the laws that govern human relationships, directly and indirectly. They do all this in a relatively short article composed of unusually readable prose. Quite a feat.

The focus of the piece is Chen and Mulligan’s contribution to the field of legal scholarship dedicated to relationships that go beyond the traditional nuclear family. As their title reveals, the authors contribute a new term and concept to this …

What The Hell Is The Major Questions Doctrine?, Jack M. Beermann

Faculty Scholarship

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence …

We Need To Talk: Modernizing Attorney-Client Jail Communications, Cynthia Alkon

Faculty Scholarship

Attorney-client jail phone calls, video calls, and emails are all routinely recorded and monitored by jails, with numerous examples of jails and private telecommunications providers giving those recordings and emails to law enforcement and prosecutors. This widespread failure to protect the confidentiality of attorney-client communications prevents lawyers from being able to enjoy easy, quick, and regular communications with their clients. In practice, and despite the ever-expanding communication methods in the outside world, those held in jails in this country while their criminal cases are pending are effectively stuck in the nineteenth century when the only way to communicate was in …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Faculty Scholarship

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James Paul George

Faculty Scholarship

Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …

When Anti-Fraud Laws Become A Barrier To Computer Science Research, Madelyne Xiao, Andrew Sellars, Sarah Scheffler

Faculty Scholarship

Computer science research sometimes brushes with the law, from red-team exercises that probe the boundaries of authentication mechanisms, to AI research processing copyrighted material, to platform research measuring the behavior of algorithms and users. U.S.-based computer security research is no stranger to the Computer Fraud and Abuse Act (CFAA) and the Digital Millennium Copyright Act (DMCA) in a relationship that is still evolving through case law, research practices, changing policies, and legislation

Amid the landscape computer scientists, lawyers, and policymakers have learned to navigate, anti-fraud laws are a surprisingly under-examined challenge for computer science research. Fraud brings separate issues that …

Decriminalization Matters: Lgbtq Transnational Litigation Networks And Movement Lawyering In The Global South, Ayodeji Kamau Perrin

Faculty Scholarship

In the last decade, a distinct sociolegal phenomenon has been sweeping across the Global South—the judicial decriminalization of same-sex sexual conduct. On the other hand, progress on LGBTQ rights has occurred in parallel to transnational countermobilization and backlash against LGBTQ rights. Yet, neither the phenomenon of judicial decriminalization nor the countermobilization and backlash to decriminalization has attracted the attention that these phenomena deserve from doctrinal legal scholars, comparative and international law scholars, or legal mobilization scholars.

In this paper, I help to remedy this oversight by making three contributions to legal mobilization scholarship and to international law and relations scholarship. …

Thc Meets Gnh: Considering Cannabis Policy In Bhutan Through A Gross National Happiness Lens, Jay D. Wexler, Sonam Tshering

Faculty Scholarship

The legal status of cannabis remains a contentious issue globally, with countries adopting divergent approaches to the drug, ranging from strict prohibition to full legalization. In Bhutan, a nation deeply rooted in the holistic philosophy of Gross National Happiness (GNH), cannabis is currently classified as a controlled substance under domestic drug laws. This paper explores the question of whether Bhutan should change its laws regarding cannabis by analyzing decriminalization’s potential impact on Bhutan’s unique justice system, considering GNH principles and the prevalence of wild cannabis growth in the nation. The research will focus on whether Bhutan’s current approach to cannabis …

The Common Law Of Constitutional Conventions, David E. Pozen

Faculty Scholarship

Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics — and entirely commonplace among progressives — it carries significant risks …

Deepfakes Can Ruin Lives And Livelihoods – Would Owning The ‘Rights’ To Our Own Faces And Voices Help?, Graeme W. Austin, Jane C. Ginsburg

Faculty Scholarship

Not that long ago, the term “deepfake” wasn’t in most people’s vocabularies. Now, it is not only commonplace, but is also the focus of intense legal scrutiny around the world.

Known in legal documents as “digital replicas”, deepfakes are created by artificial intelligence (AI) to simulate the visual and vocal appearance of real people, living or dead.

Unregulated, they can do a lot of damage, including financial fraud (already a problem in New Zealand), political disinformation, fake news, and the creation and dissemination of AI-generated pornography and child sexual abuse material.

For professional performers and entertainers, the proliferation and increasing …