The April issue of Boston College Law Review is now available. The issue features four articles by outside authors as well as four student notes. Summaries of the seven pieces can be found below. The full texts are also聽.
by Professors Richard Lorren Jolly & J.J. Prescott
Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. Focusing only on a defendant鈥檚 promise to plead guilty discounts the diversity and complexity of the agreements into which defendants and prosecutors may and regularly do enter. In this Article, Professors Jolly and Prescott advances a comprehensive framework of criminal settlement鈥攐ne that leverages incomplete or partial settlements as an analytical frame that stretches beyond mere plea bargaining. As in the civil context, criminal settlements need not resolve disputes outright but may instead limit or redefine a dispute in a way that the parties find mutually beneficial. A crucial difference in the criminal context, however, is that these bargains necessarily take place in the shadow of judicial discretion that regulates access to the state鈥檚 power to punish. Consequently, prosecutors and defendants may agree to reshape procedures, issues, and potential outcomes in order to constrain or influence judicial decision-making in ways that are congruent with their respective interests. But judges are not passive in this landscape. They, too, may act strategically to prompt the bargains we ultimately observe. By modeling this interplay between parties and judges, this Article fashions a more complete picture of the motivations, consequences, and policy implications of criminal settlement.
by Professor Zachary D. Kaufman
Professor Kaufman鈥檚 Article argues that certain witnesses who are not physically present at the scene of a crime should be held criminally accountable for failing to report specified violent offenses of which they are aware. Focusing on rape, police brutality, and other misconduct, this Article demonstrates that recent technological innovations create new opportunities and challenges to pursue justice and accountability. Such culpability centers on 鈥淏ad Samaritan laws,鈥� statutes that impose a legal duty to assist others in peril through intervening directly (also known as 鈥渢he duty to rescue鈥�) or notifying authorities (also known as 鈥渢he duty to report鈥�). This Article introduces a novel typology of bystanders and upstanders in the digital age to consider categories of actors that may warrant criminal punishment. This typology draws on an original case study of the first known sexual crime livestreamed in the United States by a third party, which more than 700 people viewed. Harnessing insights from that case study and other episodes, this Article recommends that legislators should modernize, refine, proliferate, and publicize Bad Samaritan laws, and that law enforcement should enforce these statutes or leverage them to obtain witness testimony. To that end, Professor Kaufman proposes a model duty-to-report statute that applies to virtual presence and includes reasoned exemptions for noncompliance.
by Professor Troy A. Rule
This Article describes and analyzes entitlement-shifting rules: laws that initially assign a legal 鈥渆ntitlement鈥� to one party and subsequently reassign the same entitlement to a different party. Guido Calabresi and Douglas Melamed鈥檚 classic framework of property rules and liability rules involves two basic steps that yield four possible combinations of entitlement assignments and protective rules. These combinations are conventionally numbered in a particular order as rules one through four. This Article describes 鈥渆ntitlement-shifting rules鈥� as rules that involve variations on the model鈥檚 first step of assigning the entitlement. Professor Rule sets forth principles for identifying and analyzing entitlement-shifting rules, applies those principles to examine a diverse set of real-world examples ranging from civil asset forfeiture laws to proposed drone regulations, and describes some basic strategies for deterring the most costly and unjust forms of entitlement shifting. By drawing attention to entitlement-shifting rules and their impacts, this Article paints Calabresi and Melamed鈥檚 model in a revealing new light and provides additional perspective on some of the core deficiencies of modern takings laws.
by Professor Kathryn Stanchi
Professor Stanchi鈥檚 Article is the first study that categorizes and analyzes all the references to the terms 鈥渞acist,鈥� 鈥渞acism,鈥� and 鈥渨hite supremacy鈥� throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court鈥檚 rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme Court鈥檚 usage, the law and the Court are largely innocent in perpetuating racism. The other striking pattern is the significant modern uptick in the use of 鈥渞acism鈥� and 鈥渨hite supremacy鈥� to deny or minimize the harms of racism or engage in blame-shifting tactics. This Article demonstrates how the Court鈥檚 definitions of 鈥渞acism鈥� and 鈥渨hite supremacy鈥� undercut the law鈥檚 potential to achieve racial justice and have removed the Court as a player in the fight against racism. To rectify this rhetorical (and doctrinal) problem, the Justices on the Court must name racism boldly and directly, especially when the Court and its decisions bear responsibility for it.
by Mitchell Feldman
The United States seeks to provide fair housing throughout the nation. One way victims of housing discrimination can pursue remedies is through disparate impact claims鈥攁llegations that a facially-neutral policy has discriminatory effects. In response to a 2015 Supreme Court decision which reaffirmed the viability of disparate impact housing claims, the Department of Housing and Urban development proposed a new disparate impact rule in 2019. Following widespread criticism, the Department issued a final rule in 2020 with changes to the proposal. This salient issue resurfaced when President Joseph R. Biden directed the Department to revisit the disparate impact rule once again. Mitchell Feldman鈥檚 Note explores the recent iterations of the disparate impact rule and suggests that the current rule is unsupported by precedent, policy, and empirical data. Ultimately, he argues that the upcoming revisions should balance a victim鈥檚 need for discovery with a plaintiff鈥檚 legitimate interests in their disputed policy.
by Katherine Foley
Katherine Foley鈥檚 Note explores the intersection between the First Amendment to the U.S. Constitution and state laws criminalizing the dissemination of nonconsensual pornography, more commonly known as 鈥渞evenge porn.鈥� The First Amendment protects individuals鈥� rights to engage in free speech against state intervention. The Supreme Court, however, permits states to pass laws that regulate individuals鈥� ability to engage in free speech, so long as these laws do not target the content, subject matter, or viewpoint of speech. As of 2021, forty-eight states, Washington D.C., and one U.S. territory have passed laws that criminalize the dissemination of nonconsensual pornography. Despite state efforts to criminalize this conduct, most existing state statutes are narrow, harassment-focused laws that fail to protect the majority of nonconsensual pornography victims. State efforts to pass broader, privacy-focused statutes providing more comprehensive protections to victims are routinely frustrated by constitutional challenges under the First Amendment. Katherine鈥檚 Note argues that to sufficiently protect all victims of nonconsensual pornography, states must pass broad, privacy-focused nonconsensual pornography laws. Through an analysis of the Supreme Court鈥檚 First Amendment jurisprudence, Katherine argues that these broad, privacy-focused laws do not violate the Constitution because they make permissible content-neutral restrictions on speech that should survive intermediate scrutiny when challenged under the First Amendment.
by Connor Romm
Modern artificial intelligence (AI) programs can augment inventors鈥� problem solving capabilities, and, in some cases, create inventions on their own. Patent law鈥檚 obviousness doctrine allows patents on inventions created with AI assistance, requiring only that an invention appear nonobvious to a person of ordinary skill in the art (PHOSITA). Although agreeing with this result, some commentators argue that the existing doctrine fails to address the increasing role that AI plays in the inventive process, because it only focuses on the contributions made by human inventors. To address this perceived deficiency, these commentators propose such changes as requiring patent applicants to disclose their use of AI or replacing the PHOSITA standard with a machine of ordinary skill in the art (MOSITA) standard. Connor Romm鈥檚 Note addresses these concerns and argues that the existing obviousness standard is both sufficient and necessary to determine which AI inventions deserve patents. Further, these proposals to require that patent applicants disclose the use of AI or to replace the PHOSITA altogether could distort the obviousness standard such that it rejects certain patent-worthy inventions and awards patents to some frivolous inventions.
by Lucas Spremulli
With the internet鈥檚 prominent role in society, how federal courts interpret the internet in relation to the Interstate Commerce Clause could vastly expand federal criminal jurisdiction. Lucas Spremulli鈥檚 Note, therefore, examines when the use of the internet in a robbery should satisfy the Hobbs Act鈥檚 commerce element. The Hobbs Act provides a federal alternative to traditional state robbery charges by criminalizing any robbery that affects interstate commerce. Because the Hobbs Act generally carries substantially harsher penal sentences, the difference between a state and federal robbery charge can be significant. Lucas suggests that courts should adopt a functional test to determine, on a case-by-case basis, whether internet use in a robbery satisfies the Hobbs Act鈥檚 commerce element. Specifically, this method would ensure that state sentencing policies are not undercut and that federal courts maintain the limited role that the Constitutional Framers envisioned.