Petition for Initial Hearing En Banc, United States v. Michael Norwood

This appeal involves a question of exceptional importance because it implicates binding circuit precedent that directly conflicts with the United States Sentencing Commission’s exercise of statutorily delegated authority. Congress expressly charged the Commission with promulgating policy statements and guidelines establishing, among other things, a framework governing compassionate release of federal prisoners. 28 U.S.C. § 994(a), (t). So, when Congress provided that district courts could consider a sentence reduction if warranted by “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A), Congress did not define that phrase. Instead, it directed the Commission to do so. 28 U.S.C. § 994(t). The Commission did as Congress instructed. In 2023, it issued a binding policy statement clarifying that, in specified circumstances, nonretroactive changes in sentencing law may constitute an extraordinary and compelling reason for a sentence reduction. See U.S.S.G. § 1B1.13(b)(6). But a panel of this Court held that the Commission lacked the authority to promulgate this policy statement. See United States v. Rutherford, 120 F.4th 360, 374-76 (3d Cir. 2024). Rutherford was wrong to invalidate the Commission’s exercise of its expressly delegated authority, and only the en banc court can right that wrong. Under Rutherford, a nonretroactive change in sentencing law can never be an extraordinary and compelling reason to grant compassionate release. As long as Rutherford remains binding, Appellant Michael Norwood’s request for compassionate release is foreclosed. But if this Circuit follows the Commission’s binding policy statement, a district court would have discretion to consider Norwood’s request. The Court should grant en banc review and overrule Rutherford

Dark Patterns as Disloyal Design

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them. In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack a clear value anchor for cases to build upon. Second, legal definitions of dark patterns overfocus on individuals and atomistic choices, ignoring de minimis aggregate harms and the societal implications of manipulation at scale. Finally, the law has struggled to articulate workable legal thresholds for wrongful dark patterns. To better regulate the designs called dark patterns, lawmakers need a better conceptual framing that bridges the gap between design theory and the law’s need for clarity, flexibility, and compatibility with existing frameworks. We argue that wrongful self-dealing is at the heart of what most consider to be “dark” about certain design patterns. Taking advantage of design affordances to the detriment of a vulnerable party is disloyal. To that end, we propose disloyal design as a regulatory framing for dark patterns. In drawing from established frameworks that prohibit wrongful self-dealing, we hope to provide more clarity and consistency for regulators, industry, and users. Disloyal design will fit better into legal frameworks and better rally public support for ensuring that the most popular tools in society are built to prioritize human values

Reclaiming Abortion as a Moral—and Religious—Decision

Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev. 177 (2023). In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.”1 Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment.2 However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argumen

Consumer Agents

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher prices harms the economy and may significantly contribute to heightened levels of economic inequality not seen since the Gilded Age. The absence of sophisticated third-party digital tools reflects a gaping hole in the federal regulatory framework dating back almost a century. In the throes of the Great Depression, lawmakers enacted powerful regulatory statutes for the economy’s three most important individual actors—workers, investors, and consumers. That legislation, however, strengthened third-party help only for workers and investors—via labor unions and stockbrokers. In contrast, New Deal consumer protection legislation paid no attention to how third-party market actors might help consumers. This Article shows how that omission cemented the federal core of consumer law in a dyadic, buyer-seller framework inapt for the modern networked economy. It also describes a new polyadic consumer law regime emerging at the state and sectoral level. The new regime moves beyond directly policing the consumerbusiness dyad to also cultivating an ecosystem of helpful private market actors. Some laws have begun to mandate that dominant incumbent businesses give data access to third-party digital helpers. Others have conscripted the world’s largest companies, such as Facebook and Citibank, to protect consumers from other harmful actors. These laws have the potential to thrive in deregulatory times because they are conservative—in the sense that they primarily rely on markets rather than government actors. But they also have the potential to upend an industry’s power structure. At its most ambitious, the emerging framework amounts to a digital-age consumer industrial policy with the potential to construct more efficient, equitable, and ethical markets

Benchmarking Age-Gates

This article considers the way legal actors, particularly legislators, judges, and attorneys, make arguments about the appropriate age at which a legal rule should apply to a cohort of adolescents based on their chronological age. Legal actors compare legal “age-gates” to other legal age-gates as a conclusory form of argumentation. Several ages, in particular age 18 and age 21, are particularly powerful anchors in the landscape of age-based legal rules. Age 18 marks a status transformation from legal childhood to legal adulthood, while age 21 served as the former age of adulthood and the current sales age for some controlled substances. These “anchor” age-gates become a powerful tool for judges, attorneys, and legislators seeking to justify claims about individual adolescents or a contested general age-gate. This article argues that legal actors must acknowledge the rhetorical power of anchor age-gates and the likelihood that they will impact outcomes. At the same time, legal actors should take greater care to justify age-gate comparisons by supplementing those comparisons with more substantive arguments. The article concludes by considering the status-transforming nature of marriage and its implications for the age of legal marriage

What the Hell is the Major Questions Doctrine?

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024). When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come

Celebrating 70 Years of Health Law at BU

This essay celebrates the BU Health Law Program upon its 70th anniversary, offering reflections on the founders of the program, Fran Miller, George Annas, and Wendy Mariner (“FGW,” endearingly), and their contributions to the field. Current faculty offer reflections, including: Several speak to scholarly research, including Elizabeth McCuskey on health care finance, Aziza Ahmed on human rights, Dionne Lomax on antitrust, Christopher Robertson on trust, and Kathy Zeiler on the marketplace. Other contributors speak to the student experience, with Dianne McCarthy on mentorship, Laura Stephens on demanding excellence, Michael Ulrich on teaching, and Larry Vernaglia on merging law and public health. On FGW’s broader impacts, Nicole Huberfeld speaks to the translation of research to reach new audiences, and Kevin Outterson writes about FGW’s pivotal roles in establishing the health law field and the institutions that now define it. Together these pieces testify to the astounding contributions of these scholar-teacher-leaders across many domains and dimensions of health law. While their contributions are countless and immeasurable, these reflections offer a start

Decreasing Transparency for Certain Department of Health and Human Services Actions

On February 28, 2025, the US Department of Health and Human Services (HHS) announced a significant departure in how it will interact with its key stakeholders, which include physicians, health care organizations, and patients in public programs like Medicaid. Specifically, HHS will no longer provide an opportunity for public comments on many actions around contracts, grants, and benefits.1 Additionally, it will not engage in public comments when it decides there is “good cause” to bypass them. On the surface, this may appear to be a minor, technical shift in HHS’ administrative processes, but this change may have significant implications for transparency in HHS policies as well as health care practitioners’ and patients’ ability to influence rulemaking

The Lost English Roots of Notice-and-Comment Rulemaking

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England. By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure

Design Problems

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) How do designers conceive of and solve design problems through innovative design practice?; and (2) How do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns patent law’s obviousness doctrine, which recently has been restored in the design patent context, but in ways we consider incomplete and to which we offer several improvements. Specifically, we emphasize the role of constraints under which designers work, and how those constraints can guide evaluation of the problems designers seek to solve