The March 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 eight pieces can be found below. The full texts are also available on the BCLR website.
Technological Opacity & Procedural Injustice by Seth Katsuya Endo
Both private and state actors increasingly employ machine-learning systems to make decisions that implicate individuals’ substantive rights, such as with credit scoring, government-benefit eligibility decisions, national security screening, and criminal sentencing. In turn, the rising use of machine-learning systems has led to questioning about whether they are sufficiently accurate, fair, and transparent. Professor Seth Katsuya Endo builds on that work, focusing on how opaque technologies can subtly erode the due process norm of participation. His Article examines the use of predictive coding—a form of technology-assisted review in which supervised machine-learning software is taught to predict the relevance of collected documents for discovery productions—to highlight this issue. The Article concludes by proposing a reinvigorated Mathews framework that explicitly weighs predictive coding’s impact on the participation norm to better futureproof the doctrine.
Board to Death: How Busy Directors Could Cause the Next Financial Crisis by Jeremy C. Kress
Professor Jeremy Kress examines the consequences of overcommitment on financial institution directors' performance. Though responsibilities outside their primary duties as corporate directors provide valuable learning and networking opportunities they also can lead to cognitive overload. Without sufficient time and energy to adequately strategize and evaluate risk, overcommitted directors destabilize the U.S. financial system. Professor Kress proposes a number of regulatory reforms as a practical means to alleviate director overcommitment.
Consumers, Seller-Advisors, and the Psychology of Trust by Justin Sevier and Kelli Alces Williams
Through an original study on consumer psychology, Professors Sevier and Williams examine how trust in a seller-advisor can influence our consumption choices. Unlike professionals such as doctors and lawyers, seller-advisors owe no fiduciary duty to their clients. The law, however, does not inform consumers of seller-advisors' self-interest, nor does it protect their (perhaps misguided) trust in these agents. By analyzing the circumstances that give rise to consumer trust in seller-advisor interactions, Professors Sevier and Williams present a theoretical foundation for understanding how legal policy can be better crafted to protect consumer vulnerability.
An Empirical Study of Rule 609 and Suggestions for Practical Reform by Ric Simmons
Professor Ric Simmons's Article conducts an empirical study of Rule 609 to determine how the rule operates in practice. After presenting a historical background of Rule 609 and evaluating common criticisms of the rule, the Article presents the results of a survey of law students and federal district court judges to determine how much probative value and unfair prejudice each group perceives for different types of prior convictions. The Article then examines how federal district court judges actually apply Rule 609 in the courtroom. Contrary to conventional wisdom, it shows that federal judges do not routinely admit prior convictions to impeach criminal defendants, and that (consistent with the survey) judges tend to admit theft crimes more often than almost any other type of conviction. The Article concludes by proposing a modest reform to Rule 609, which encourages the admission of theft crimes to impeach witnesses, but precludes the use of other types of criminal convictions as impeachment evidence.
Shucking a Patent: How a Simple Best Available Technology Law Can Break the Shell of Patent Protection by Antonio G. Fraone
In his Note, Antonio Fraone discusses the potential to implement best available technology (BAT) laws to force the utilization of legally protected unused environmentally optimal patents. He explains that new BAT laws can utilize the Supreme Court's decision in eBay, Inc. v. MercExchange LLC, that sets forth a four-part test to determine when infringement will be remedied with an injunction or reasonable royalties, to bring about the use of unused patents. He concludes that BAT laws can be used to force patent licensing in certain circumstances through infringement that will ultimately fail to be enjoined if challenged in court.
"A Search Is a Search": Scanning a Credit, Debit, or Gift Card Is a Search Under the Fourth Amendment by John A. LeBlanc
In his Note, John LeBlanc examines several recent decisions of the U.S. Courts of Appeals
that have held that the government’s act of scanning the magnetic stripe of a lawfully seized credit, debit, or gift card to access the information encoded therein is not a search within the meaning of the Fourth Amendment. He explains how Fourth Amendment jurisprudence has evolved in light of advances in technology and argues that existing precedent on Fourth Amendment search determinations and the technological realities of the modern world should allow an individual to claim a reasonable expectation of privacy in the electronic information encoded on cards. Accordingly, John concludes that the government’s act of scanning the magnetic stripe of a card to access its encoded information should be considered a Fourth Amendment search.
Writing the Access Code: Enforcing Commercial Web Accessibility Without Regulations Under Title III of the Americans with Disabilities Act by Daniel Sorger
In his Note, Daniel Sorger argues that commercial websites nationwide are violating Title III of the Americans with Disabilities Act because they are inaccessible to disabled individuals, but that the growing profit-driven Title III private enforcement regime will not bring about comprehensive or sustainable compliance. He proposes that large-scale litigation, state attorney general action, and state laws should be used to usher in commercial web accessibility according to the globally-accepted standards already employed by federal, state, and local governments.
Doctrine on the Run: The Deepening Circuit Split Concerning Application of the Fugitive Disentitlement Doctrine to Foreign Nationals by Chloe Booth
In her Note, Chloe Booth discusses the inconsistent application of the Fugitive Disentitlement Doctrine to foreign nationals charged with crimes in the United States. She discusses the doctrine's history and uses two cases to showcase the disparate invocation of the doctrine by the U.S. Courts of Appeals for the Second and Seventh Circuits in cases involving foreign nationals who have never been to the United States. She argues that the Seventh, and not the Second's, Circuit interpretation, is the correct one because it takes into consideration the realities of what it means to be a foreign national living abroad with pending charges in the United States and does not limit itself to saying a foreign national is not bound by any adverse consequences until they appear in the United States to answer the charges. She concludes by saying the Supreme Court erred by denying certiorari in U.S. v. Darin because, as it now stands, foreign nationals who wish to contest their U.S. charges will face different standards based on the jurisdiction in which they are prosecuted.