The October 2025 issue of Boston College Law Review is now available. The issue features four articles by outside authors as well as three student notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Digital Servitude by Julie Dahlstrom
This Article addresses the phenomenon of digital servitude—forced labor practices facilitated by information and communications technology (ICT). With advances in technology and the internet, scholars and advocates have observed the rise of technology-facilitated human trafficking. Yet, disproportionate focus has remained on online sex trafficking, including commercial sex websites and online recruitment, despite ample research on work, technology, and digital surveillance. This Article seeks to fill this gap by shedding light on how technology intersects with involuntary servitude and forced labor claims in the United States. By analyzing federal pleadings in civil and criminal labor trafficking cases, it provides new insights about how technology can facilitate forced labor and how trafficking law can evolve to take into account the modern realities of servitude. In particular, this Article posits that federal labor trafficking statutes, with modest interventions, can play an important role in addressing technology-facilitated labor trafficking in the United States.
Betting on Everything by Karl Lockhart
Investing and gambling occupy two different regulatory worlds—as different as New York and Las Vegas. But how and where to draw the line between these activities has flummoxed lawmakers for centuries. This Article seeks to add a new chapter to that debate in light of three recent developments: sports gambling’s legalization and rapid growth; the increased prominence of retail investors (and the risky investment products they are purchasing); and the rise and widespread acceptance of event contracts—including those related to elections that were first available during the 2024 election cycle.
The Case for Appellate Review of the Judicial Panel on Multidistrict Litigation by Jacob Tomory
The Judicial Panel on Multidistrict Litigation (JPML) determines if cases pending in different district courts throughout the country should be centralized into a multidistrict litigation (MDL). This Article is the first to argue that the JPML should be subject to appellate review. MDLs are incredibly important. Over half of all federal civil cases are currently centralized into MDLs, and MDLs touch on pressing issues such as the opioid crisis and climate change. Because of this, the JPML’s decisions can have significant consequences. Despite these consequences, these decisions cannot be appealed. MDLs have received significant attention in recent years, and we are currently in a golden age of scholarship on MDLs. But very little has been written on the JPML itself, and no one has argued in favor of appellate review of the JPML. Despite the lack of attention, appellate review of the JPML is important. Like class certification, which is appealable, MDL centralization is essentially dispositive in many cases. Additionally, appellate review of the JPML would further important goals such as clarifying the law, ensuring correct outcomes, and promoting due process. There are, however, reasons to be cautious about expanding appellate review. This Article argues for appellate review of the JPML, addresses the drawbacks, and presents a specific policy proposal for expanding appellate review of the JPML that captures the benefits of appellate review while avoiding the pitfalls.
The State Capacity Crisis by David Schleicher & Nicholas Bagley
Crumbling infrastructure, inadequate housing supply, failing schools, public disorder—few government services seem to work as they should. For a decade, a nascent scholarly movement has been warning that America faces a crisis of state capacity. Although the major figures in this “state capacity movement” have identified the right problem, they concentrate almost exclusively on the federal government. That yields a misdiagnosis of why the American government lacks capacity and leads to solutions that are unlikely to accomplish much. In the United States, it is state and local governments that do most of what “the state” does, and they suffer from different pathologies from the federal government. First, voters know next to nothing about their state and local representatives, and instead base their votes on national political affiliation. That dulls public accountability for good government performance. Second, state administrative law is as strict, and often stricter, than federal administrative law, especially when it comes to rules around public participation. That privileges interest groups that have the organizational wherewithal to exploit the procedural opportunities that administrative law affords. Third, states have limited fiscal capacity relative to the federal government. When a recession depletes tax revenue, states have few choices except to increase taxes or reduce spending, right when public services are needed most. These three factors are the primary drivers of a dearth of American state capacity, and they are all getting worse. Yet they are basically invisible in the state capacity literature. To improve the quality of American governance, we must examine the right governments and ask the right questions.
Loc(K)Ed out: The Legal Imperative for a Federal Crown Act & Redefined Immutability by Haley Cole
In 2019, California became the first state to pass the Creating a Respectful and Open World for Natural Hair (CROWN) Act, a legislative initiative created to combat race-based hair discrimination in the United States. Race-based hair discrimination in the United States is rooted in the degradation of the Black phenotype during the transatlantic slave trade. In the face of this, Black Americans have made efforts to reclaim Black power and uplift Black beauty through the Black Power Movement, and more recently through a second wave natural hair movement. Despite the pivotal role civil rights protections, like those enacted through the Civil Rights Acts of 1866, 1871, and 1964, have played in the race-discrimination landscape, existing discrimination law falls short in remedying race-based hair discrimination. Judicial rulings, particularly that in EEOC v. Catastrophe Management Solutions, have reinforced the concept that natural Black hairstyles are not an immutable trait, allowing employers and public institutions to enforce discriminatory grooming policies that disproportionately impact Black individuals. The CROWN Act has the potential to rectify the shortcomings of existing discrimination law by providing Black people with a legal remedy against race-based hair discrimination. This Note argues that Congress should enact a federal CROWN Act that explicitly frames natural Black hairstyling as a flexible carve-out immutable trait akin to presently established immutable traits, such as skin color. This would remedy the gap existing anti-discrimination laws have left and firmly establish race-based hair discrimination as a form of racial bias under federal law.
Adjudicative Angst: Administrative Law Judges and the Fairness Paradox at the Heart of SEC v. Jarkesy by Jordan Kaplan
Ever since Congress passed the Administrative Procedure Act (APA) in 1946, Administrative Law Judges (ALJs) have adjudicated disputes like federal courts. ALJs resemble Article III judges with respect to insulation from executive branch control, and similarly play an important part in assessing agency enforcement of federal law. Today, almost two thousand ALJs adjudicate Social Security, Medicare, and securities regulation claims, among others. Until recently, the U.S. Supreme Court has largely upheld administrative adjudication as consistent with the Constitution under the public rights doctrine. Yet, as the Supreme Court has shifted rightward, attacks on this feature of the modern administrative state have grown. In 2022, in Jarkesy v. SEC, the United States Court of Appeals for the Fifth Circuit invalidated the Securities and Exchange Commission’s use of ALJs to adjudicate federal securities law on two key grounds. First, it determined that SEC ALJs could not impose securities fraud fines without violating the Seventh Amendment right to a trial by jury; and second, the court determined that dual for-cause removal provisions protecting SEC ALJs from presidential control infringed upon the President’s Article II removal power. In 2024, the U.S. Supreme Court affirmed the Fifth Circuit’s Seventh Amendment holding, avoiding the removal issue for now. This Note argues that these two holdings are in tension. Lurking beneath the Court’s formalist Seventh Amendment jurisprudence is a deep skepticism of the fairness of ALJ adjudication. Yet, the Court adopting the Fifth Circuit’s removal analysis would subject ALJs to political influence, thereby perpetuating the very fairness deficiencies it denounces in Jarkesy across thousands of ALJ proceedings.
Secret Law: Separation of Powers and the Public Right of Access to Foreign Intelligence Surveillance Court Jurisprudence by Sara Womble
In 2021, the Supreme Court declined to take up a petition from the American Civil Liberties Union (ACLU) asserting a First Amendment right of access to significant opinions issued by the Foreign Intelligence Surveillance Court (FISC). Writing in dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, raised concerns about the implications of the Court’s denial for two major reasons—the First Amendment rights of Americans, and, more fundamentally, the separation of powers issues implicated by the government’s assertion that the Court lacked jurisdiction to review the work of a subordinate Article III court. This Note examines the arguments advanced by the ACLU in support of its petition, and those of the government in opposition. It proceeds by analyzing the broader implications of each set of assertions for the First Amendment rights of individuals, as well as the structural implications for the separation of powers, arguing that the Supreme Court should take up the issue raised by the ACLU’s petition. Additionally, this Note argues that in light of the recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, which tasks the FISC with programmatic oversight of sweeping government surveillance programs, it is particularly important that courts find a qualified public right of access to FISC opinions and orders.