In his article, The 'Realness' Key to Compelled Passcode Production, published in the Journal of Criminal Law & Criminology (Vol. 115, 2025), Pace Haub Law Visiting Assistant Professor Gabriel Pell offers a novel framework for applying the Fifth Amendment’s Foregone Conclusion exception to compelled passcode entry. At the heart of the article is a key question: when the government forces someone to unlock a phone, are they permissibly being compelled to produce real evidence that exists outside of their mind—or are they revealing the contents of their mind in violation of their privilege against self-incrimination?
Drawing on the “act of production” doctrine, Professor Pell argues that where the average user experiences their passcode as something that exists outside of their mind, courts can conceptualize the passcode stored within a given device or the unlocked device itself as the 'real' evidence produced through compelled passcode entry. This conceptual shift can resolve a national split in authority among courts while protecting targets from compelled revelation of mere memorized information.
“[T]he government need not demonstrate pre-production knowledge of the contents of a locked device to satisfy the Foregone Conclusion exception,” Professor Pell writes, challenging assumptions some courts have made about the application of this paper-based doctrine to passcodes in the digital era.
In her article, “Legal Professional Privilege in a Digital World: A Comparative Analysis,” published in Volume 15 of the British Journal of American Legal Studies(Spring 2025), Pace Haub Law Professor Lissa Griffin and co-author Dan Jasinski explore the evolving challenges to legal professional privilege in an increasingly digitized criminal justice system.
In her article, Representing Climate Wreckers, published in the NYU Environmental Law Journal (2025), Pace | Haub Environmental Law Professor Camila Bustos examines the ethical responsibilities of attorneys representing fossil fuel companies—termed "climate wreckers"—and argues for a reevaluation of professional conduct standards in light of the climate crisis.
In his article, The Sound of Science in Major Questions Doctrine Jurisprudence, published in Natural Resources & Environment (ABA, Spring 2025), Pace | Haub Environmental Law Professor Josh Galperin (with co-author Terra Baer) examines how the U.S. Supreme Court’s use of the major questions doctrine undermines core constitutional and statutory principles—particularly when the Court treats congressional silence as legislative intent.