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.
Technology Adrift: In Search of a Role for Electronic Wills by Professor Adam J. Hirsch
In his Article, Professor Hirsch addresses the law and public policy of electronic wills. The Article analyzes state statutes that either apply explicitly or implicitly to wills of this type and concludes that judicial approval of electronic wills is already within the realm of possibility even in the many states that do not expressly allow them. Professor Hirsch also examines the case law to date on this issue, both in the United States and in foreign jurisdictions, including several cases that have not previously been noted by American commentators. After addressing the merits and demerits of electronic wills and presenting the results of the first large-scale empirical study of popular attitudes toward these wills, Professor Hirsch proposes a new approach: to bar electronic wills in general but to permit them for estate plans made under emergency conditions.
Is Transformative Use Eating the World? by Professor Clark D. Asay
Professor Asay examines copyright law’s fair use defense, particularly the state of the transformative use doctrine. The Article presents an in-depth empirical analysis of data from all district and appellate court fair use opinions between 1991, when the transformative use term first made its appearance in the case law, and 2017. These data include how frequently courts apply the doctrine, how often they deem a use transformative, and the win rates for transformative users. The data also cover which types of uses courts are most likely to find transformative, what sources courts rely on in defining and applying the doctrine, and how frequently the transformative use doctrine bleeds into and influences other parts of the fair use test. Professor Asay concludes by asserting that the transformative use doctrine is, in fact, eating the world of fair use, and by analyzing some possible implications of these findings.
Misdemeanors by the Numbers by Professors Sandra G. Mayson & Megan T. Stevenson
In their Article, Professors Mayson and Stevenson present the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets covering several million cases across eight diverse jurisdictions, they present detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing. The resulting portrait reveals a system that disproportionately impacts poor people and people of color and illustrates high rates of pretrial detention, substantial racial disparities in case-filing rates, and profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. Professors Mayson and Stevenson argue that the variation in actors and functions presents a major challenge to describing and theorizing the contemporary landscape of misdemeanor justice and calls into question the coherence of the very concept of a misdemeanor and its role in the criminal justice system.
Compensatory Mitigation and Public Lands by Professor Justin R. Pidot
Professor Pidot’s Article explores the practice of compensatory mitigation—requiring land users to offset their environmental harms—as an important mechanism for balancing competing interests in public land use. The Article delves into the history of public land law, the development of environmental mitigation policies across the federal government, and three interlocking provisions of the Federal Land Policy and Management Act of 1976—the Multiple Use Mandate, the Land Use Planning Mandate, and the Anti-Degradation Mandate. In response to recent attacks from the U.S. Secretary of the Interior regarding the Bureau of Land Management’s authority to require compensatory mitigation, Professor Pidot asserts that the agency, indeed, has ample authority to require it. The Article concludes by assessing the circumstances in which resource users can appropriately be required to offset the impacts of their uses.
In Milan Kumar’s Note, she discusses the new barriers that American Indians and Alaska Natives face in exercising their fundamental right to vote. She discusses how states have introduced and implemented facially neutral voting rules, with the stated goal of eliminating voter fraud, that disproportionately suppress American Indian and Alaska Native voters. While the Voting Rights Act of 1965 was critical in providing American Indians a way to challenge discriminatory practices, Milan argues the Act only partially addresses the current problems American Indians and Alaska Natives face. She argues that new federal legislation is necessary to ensure that American Indians and Alaska Natives have equal access to the ballot box.
Avery Minor’s Note explores the lack of clarity surrounding cryptocurrency regulations in the United States. Overlapping federal and state regulatory approaches created a mess of confusing rules for entrepreneurs, causing both companies and capital to flock to other countries with more stable regulatory environments. After examining the positive effects of Regulation D and the Digital Millennium Copyright Act safe harbors on the venture capital industry and Internet Service Providers, respectively, Avery argues that federal regulators must work together to create a similarly streamlined, flexible, and pro-competitive regulatory scheme for cryptocurrency.
The language we use matters. Meg Ziegler’s Note traces the history of the exclusionary language that has been used in the law to refer to people with disabilities. This language has often mirrored various models for treating and perceiving disability in society, from the moral model of disability as a sin to the medical model of disability as a defect to be cured. Because the law is a powerful agent for social change, Meg’s Note makes a threefold argument that the law and its enforcers should adopt a social model of disability: lawyers should utilize respectful language in their practice and confront their own underlying assumptions about disability, state legislatures should ensure their laws are updated to utilize proper disability terminology, and the Supreme Court should adopt a more expansive definition of what it means to be an “individual with a disability” to bring more individuals within the protection of the Americans with Disabilities Act.
In Max Meglio’s Note, he explores the efficient world of consumer data breach litigat . . . . Wait, no he doesn’t. He actually condemns it as a complete waste of time and discusses the substantial costs that data breaches levy on both consumers and companies. He describes how our poor approach to consumer data breach litigation exacerbates these costs and leaves few parties satisfied, and how this is unlikely to change in the near future given our economy’s reliance on data integration and our devil-may-care approach to bartering with this data for free web services. He proposes a centralized remedy, incorporating a no-fault resolution system similar to workers’ compensation and safe-harbor-based cybersecurity compliance incentives, to reduce the costs that flow from data breaches and provide consumers with much more accessible and timely redress.