The November 2025 issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as three student notes. Summaries of the six pieces can be found below. The full texts are also聽.
by Janet Freilich & W. Nicholson Price II
A large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government鈥檚 purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. Government-provided data is particularly powerful for data-driven technologies such as artificial intelligence (AI) where it is sometimes more effective than traditional methods of regulation. But government-provided data is a policy tool beyond AI and can influence policy in any field. We illustrate why government-provided data is a compelling tool for both positive regulation and deregulation in contexts ranging from addressing health-care discrimination, automating legal practice, smart power generation, and others. We then consider objections and limitations to the role of government-provided data as policy instrument, with a substantial focus on privacy concerns and the possibility for autocratic abuse.
by Gregory Day
Antitrust has adopted the 鈥渕arketplace of ideas鈥� from the First Amendment. The essence of this standard is that people should rationally demand the truth, thereby causing accurate information to overcome falsehoods without antitrust鈥檚 help. This has, though, produced an odd approach in which antitrust promotes the flow of information without any regard for its truthfulness.聽Whereas antitrust refuses to remedy misinformation because consumers should rationally consume truthful information, perhaps people may actually prefer misinformation. This Article delves into cognitive and behavioral scholarship to explain why misinformation thrives in voids of competition. It shows that people become increasingly likely to demand misinformation in (1) rational and (2) irrational ways when competition declines.聽Knowing that antitrust law redresses inefficiencies caused by monopolies and trade restraints, enforcement should begin to treat misinformation as a market failure. When anticompetitive conduct creates a bottleneck of information, monopolists can generate revenue from filling voids with false and misleading content.聽Not only would this approach foster accurate information without entering unconstitutional waters like forcing a news organization or website to publish both sides of a debate, but it could better align antitrust with the First Amendment. To do so, antitrust must first assess why monopolies, news deserts, and informational vacuums impede 鈥渞ational actors鈥� from consuming truthful content.聽
by Pamela Samuelson & Jessica Silbey
A stealth issue in many close copyright fair use cases is the potential invalidity of second comers鈥� copyrights under 17 U.S.C. 搂 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work鈥檚 expression was 鈥渦sed unlawfully.鈥� Courts have largely ignored 搂 103(a). But recent cases, such as聽Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith聽(2023), have raised the profile of 搂 103(a). This Article traces the origins, history, and case law on 搂 103(a), highlighting its ambiguity and significant ramifications in cases in which it was arguably relevant. By exploring the expansive range of possible interpretations and applications of 搂 103(a), the Article argues that a careful reading of the statutory text, in keeping with its legislative history, reveals the dual purpose of 搂 103: to prevent infringers from being unjustly enriched when they take protected expression from earlier works and to provide protection to the original expression contributed by derivative work authors. When courts understand this dual purpose, they can and should limit the extent to which 搂 103(a) should invalidate copyrights, especially in close cases of derivative work infringement and fair use rulings. When invalidations of copyrights would be inequitable as to good faith secondary uses of source works, would result in windfalls to source work authors, or would otherwise be contrary to fundamental principles of copyright law, this Article argues that the best reading of 搂 103 would apply it narrowly to achieve copyright鈥檚 goal of promoting the 鈥減rogress of science.鈥�
by Robert Lamb III
Recent statements by Secretary of Defense Pete Hegseth proposed reinstating a blanket ban on women serving in ground combat roles in the military. This reignited a long-standing debate over gender integration in the armed forces. Critics primarily argue that gender integration negatively affects physical readiness, unit cohesion, and combat performance. These criticisms, however, are based on flawed assumptions. Congress鈥檚 efforts to increase the recruitment and retention of female service members have further complicated the issue by preventing the military from implementing gender-neutral physical and occupational standards for ground combat positions. This Note argues that because gender neutral standards have been implemented for ground combat positions, a categorical ban on women serving in these roles would violate the Equal Protection Clause. Research on gender integration within the military suggests that when gender-neutral standards are implemented, there are no disparities between mixed-gender and all-male units in terms of individual physical performance, combat effectiveness, and unit cohesion. This Note recommends that Congress enact legislation requiring the implementation of gender-neutral physical and occupational standards for all ground combat roles, providing a more permanent solution to the issue of gender integration than the current military policy.
by Kallie Polgrean
Compassionate release has long been an evolving legal issue in the United States. This evolution is particularly salient today as federal courts struggle to decide whether non-retroactive changes in sentencing laws qualify as extraordinary and compelling reasons for a sentence reduction. This Note explores the development of compassionate release through the Sentencing Reform Act, the First Step Act of 2018, and the resulting surge in motions for compassionate release, especially in response to the COVID-19 pandemic. Additionally, this Note argues that non-retroactive changes in sentencing laws should be considered when deciding whether a defendant鈥檚 circumstances meet the threshold for extraordinary and compelling reasons to reduce a sentence. Excluding such changes from consideration perpetuates inequities in the criminal justice system, particularly for individuals sentenced under laws that have since been reformed. Failure to recognize the impact of non-retroactive law changes also undermines the legitimacy of the U.S. Sentencing Commission and the integrity of compassionate release as a tool for justice.
by Samantha Raymond
The American carceral system imprisons nearly 2,000,000 individuals in jails and prisons throughout the country. As the climate crisis worsens and the number of natural disasters continues to rise, those individuals are in mortal peril. What happens to incarcerated people when treacherous winds and unprecedented floods hit? Due to non-existent and ineffective prison evacuation procedures, incarcerated individuals are left to drown behind the bars of their cells. Whether this systemic problem constitutes cruel and unusual punishment under the Eighth Amendment remains unclear. Supreme Court jurisprudence over the last seventy-five years surrounding such claims has evolved, but the Court-implemented subjective deliberate indifference standard has only increased ambiguity as to what constitutes that type of punishment. With the passage of the Prison Litigation Reform Act, prisoners and pretrial detainees face increased obstacles to bringing constitutional violation claims. This Note reviews the legal framework within which prisoners and pretrial detainees bring claims of cruel and unusual punishment against officials within the carceral system. This Note argues that the subjective deliberate indifference standard bars recovery for state prisoner-plaintiffs on claims of unconstitutional conditions of confinement post-natural disaster and thus should be abandoned. In abandoning the subjective prong of the standard, justice for prisoners experiencing constitutional violations would no longer be illusory. This Note further argues that the abandonment of the subjective component would incentivize officials to create and execute evacuation plans for their prisons in the face of a natural disaster.