Digital Commons Network^™

United States Response To 2025 Questionnaire, Philippa Loengard

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

The Gamification Of Banking, Colleen Baker, Christopher K. Odinet

Faculty Scholarship

Gamification is coming to banking. This phenomenon is already gain-ing ground in advertising, healthcare, manufacturing, and, more recently, with the GameStop and AMC meme stock saga in securities trading. The idea behind gamification is to make transactions seem fun, playful, and even casino-like in order to elicit habit-forming, addictive-like effects with consumers. This Article argues that the rise of financial technology (“fintech”) firms and their ever-growing business relationships with incumbent financial institutions has created the necessary conditions for gamification to take hold in the banking sector. In order to explore this observation, we undertake a study of current examples of …

Traditional And Computational Canons, Eric H. Martinez

Faculty Scholarship

As part of the rise of modern textualism, dictionaries and linguistic canons have become a ubiquitous part of legal interpretation. One longstanding question is whether judges citing these tools sincerely attempt to follow the meaning of a text, or if their invocation is merely window-dressing for a preferred outcome. The practical significance of this question extends across all major doctrinal areas, and with the Supreme Court’s overturning of Chevron deference, its importance is only to grow, as courts are now instructed to use every tool at their disposal to resolve ambiguity when interpreting a law. This Article is the first …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

Curricular Choices: Misconceptions Regarding Law School Courses, Constance Backhouse, Holland Stille, Avery Esford

Dalhousie Law Journal

Canadian law schools offer their upper-year students a wealth of optional curricular choices. Yet many students choose narrowly and poorly. This article addresses the misconceptions that many hold as they select their second- and third-year courses. Often students believe they need certain courses to get a job, to prepare for articling, to pass the bar exams, or to prepare for future legal careers. In most cases, these concerns are erroneous. This article urges students to choose based on factual evidence rather than imagined anxieties and on personal interest rather than the “group think” rigidity that infects much of the curricular …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

William & Mary Journal of Race, Gender, and Social Justice

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

The Demonization Of America's Economic Engine, Ediberto Roman

William & Mary Journal of Race, Gender, and Social Justice

In a 2013 book entitled Those Damned Immigrants: America’s Hysteria Over Undocumented Immigration, I warned of a conservative political trend that I believed would lead to an all-out assault on undocumented immigrants. This trend occurred despite the fact that these immigrants are critical economic boons to our economy.

On his first day in office in 2025, President Trump made the book’s warnings prophetic. That day, President Trump issued a series of executive orders, including 10 focused on limiting entry into the United States and questioning many who previously entered the United States legally. These orders include, 1) enhanced deportation …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Venturing Into Health, Rachel E. Sachs

Fordham Law Review

In recent years, the landscape of venture capital (VC) investment in healthcare technologies has been altered by the introduction of new types of VC firms: those that have emerged from hospital systems and health insurers. However, the legal literature has not yet analyzed these new VC firms, the role they may play in healthcare innovation, and how innovation law and policy ought to consider their involvement. Hospital system and health insurer VC firms operate very differently than traditional VC firms, even those that have historically developed healthcare specializations. Instead of simply investing capital into start-up firms, hospital system and health …

Table Of Contents (V. 50, No. 1)

William & Mary Environmental Law and Policy Review

No abstract provided.

Subsistence As Resistance: Reconceptualizing The Theory Of Progressive Property To Incubate Resistance To Consumerism, D.S. Pensley

William & Mary Environmental Law and Policy Review

This Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.

Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

Burdens Of Proof In Criminal Procedure, Eve Brensike Primus

Articles

The Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme …

Introduction To Critical Conversation In Canadian Public Law, Joshua Sealy-Harrington, Karen Drake, Kyle Kirkup, Anne Levesque, Jena Mcgill

Articles & Book Chapters

The introductory chapter to Critical Conversations in Canadian Public Law situates the book "in the midst of some of the most significant social, economic, and political struggles of the past decade", from the COVID-19 pandemic to the Gaza genocide. The introduction describes how the book "seeks to reflect and ignite critical conversations about the centrality of public law and its institutions, broadly defined and deeply contested, to the (re)production of current inequities." It outlines two ways in which the collection is "critical": first, the critical legal methods employed by the contributors (e.g., acknowledging law's political operation, understanding law's relationship with …

A Call For Canceling Compassionate Release And Restoring Federal Parole, Honorable Chief Judge C.J. Williams

Washington and Lee Law Review

The current federal sentencing scheme is a patchwork quilt of provisions that grant judges virtually unfettered and unreviewable discretion imposing sentences on the front-end and in granting compassionate release on the back end. It was not designed in the beginning to be this way. The advisory-only sentencing guidelines scheme we have now resulted from the Supreme Court’s finding that mandatory guidelines violated the Constitution. The recent sentencing reform movement—of which compassionate release is a significant part—has sought to find ways of ameliorating what is seen as the draconian result of the war on drugs. The question is whether granting Article …

Citizen Shareholders: The State As A Fiduciary In International Investment Law, Eleanor L. Thompson

Michigan Law Review

International investment law provides stability for investors, helps capital flow across the globe, and can be a critical tool for sustainable development. This regime, however, has become increasingly controversial, in part due to its inability to reconcile investor obligations with competing human rights obligations. International investment treaties provide substantive guarantees to investors, including submission to binding arbitration in the event of breach. When found in breach of one of these guarantees, international investment arbitral tribunal awards are often in the hundreds of millions of dollars, potentially creating “regulatory chill” for states that may otherwise take affirmative action to protect human …

Manufactured Monstrosity: Analyzing And Challenging The Narrative Of Lgbtq+ Terrorism, Samantha Salter

Colorado Law Student Scholars

No abstract provided.

Religious Conflicts In Disguise: The Limits Of The Law In Tackling Conflicts With Religious Dimensions, Yael Efron

Cardozo Journal of Conflict Resolution

In previous publications, we have established the crucial differences between conflicts with religious dimensions (CRDs) and other types of conflicts. We claim that a legal solution to CRDs is rarely sufficient to terminate the conflict and often might lead to further damage to communities and persons, sometimes even harsher than the original dispute. Since not all CRDs are similar, a theorized model of their distinguishing elements—time, intensity, and proximity to core values—assists us in differentiating them. By analyzing the elements of CRDs in accordance with the TIV model, we can more easily determine which conflicts are suitable for legal process …

Pleasure & Pain In Intellectual Property, Andrew Gilden

William & Mary Law Review

Intellectual property produces pleasure. IP laws incentivize investment in popular culture, helping to ensure the viability of entertainment industries and the steady production of our favorite shows, cherished brands, and beloved celebrities. Across IP-heavy industries, creators cite the joy of writing, composing, coding, and experimenting as a motivation for countless hours in the office, studio, or lab. Nonetheless, in a broad range of settings, and across several areas of IP, courts have responded with hostility to personal accounts of pleasure in IP disputes. When a defendant admits to using IP because they are fans of the plaintiff, or because they …

The Not-So-Silent Side Effects Of Upzoning: Noise Pollution, Mackenzi Barrett

Vanderbilt Law Review

A broad coalition has formed to oppose restrictive zoning laws. According to this coalition, zoning is largely to blame for the current housing crisis facing the United States, and to increase the housing supply, cities across the country should embrace upzoning—that is, loosen zoning laws to allow for greater density. Like many other well-intentioned policy changes, upzoning has the possibility for negative unintended consequences. Among those consequences is noise pollution. In recent decades, noise pollution has gone largely undiscussed in the United States. Notwithstanding this neglect, existing research demonstrates that noise pollution can have serious adverse effects on people’s health …

Domestic Military Deployments After Trump V. United States, Chris Mirasola

William & Mary Law Review

The current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.

In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption …

Minors Or Miners? Analyzing Compensation Of User-Generated Content Under The Fair Labor Standards Act, J. Clayton Eaton

Vanderbilt Journal of Entertainment & Technology Law

Roblox is an online platform where users, many of whom are under the age of eighteen, create games, virtual experiences, and digital assets that generate significant revenue for Roblox Corporation, the owner of Roblox. These young content creators are compensated primarily through platform-specific virtual currency, which can be difficult to convert into real-world money due to the high thresholds for conversion and the unfavorable exchange rates. Even though these systems resemble labor relationships, existing legal frameworks and government actions do little to address the creators’ rights to fair compensation. This regulatory gap has allowed platforms like Roblox to operate under …

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

Burying Weapons Under The White Pine Tree: Reducing Nuclear Weapons And Using The Monetary Savings To Compensate Native Peoples Injured By The U.S. Nuclear Weapons Complex, William Y. Chin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Better Digital Contracts With Prosocial Friction-In-Design, Brett Frischmann, Moshe Y. Vardi

Faculty Publications

Contract law is supposed to enable people to reach genuine agreements and cooperate. If this ideal was ever a reality, the rise of mass market contracts and boil­erplate rendered it pure fiction. Modern consumer contracts are incomprehensible to most people. No one reads them anyway.

Digital contracting involves design features that amplify traditional boilerplate harms and create others. For example, digital contracting is too cheap; low marginal costs lead to overexpansion in scale and scope. To make matters worse, the loss of autonomy from repeat engagement with digital contracting systems is pernicious. People become increasingly predictable and programmable as digital …

The Advocate (Fall 2025), Lewis & Clark Law School

The Advocate

No abstract provided.

Does The Pto Have The Power To Ask Where You Sleep At Night? Pamela Chestek, The Patent Act, And The Apa Say No, Jessica Manzon

Cardozo Law Review

Imagine this scenario: You apply for a trademark, following the longstanding practice of listing your business’s PO Box on the application. Days later, you receive a notice from the U.S. Patent and Trademark Office (PTO): Your application was rejected for failure to disclose your domicile address—a requirement imposed under the 2019 U.S. Counsel Rule. Having previously suffered harm from making your home address public, you are understandably reluctant to expose it again for something as routine as a trademark application. You stand firm in withholding your domicile address, citing privacy concerns. As a result, your application remains denied, and when …

From Matrimony To Autonomy: Divorce As A Fundamental Right, Karin Carmit Yefet

Cardozo Law Review

Liberal divorce is under assault. Yet this development—one that arguably may shape the everyday life of Americans more profoundly than nearly any other domain of state law—has elicited surprisingly little scholarly inquiry. Because divorce has long fallen within the province of states and hewed to the whim of state legislatures, restrictions on divorce have rarely inspired constitutional analysis. As a result, the constitutional architecture necessary to conceptualize—let alone resolve—the question of how divorce law intersects with fundamental rights remains strikingly wanting. Indeed, one of the enduring puzzles of constitutional scholarship is the diametrically opposed treatment of marriage and divorce. While …

Criminal Court's Disability, Zohra Ahmed

Faculty Scholarship

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides.

Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the …

Reasoning From Injustice, Robert L. Tsai

Faculty Scholarship

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice …