Digital Commons Network^™

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 1: International Law), Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This paper focuses on the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS), which aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction of new facilities, the intake and processing of water, and the handling and storage of carbon dioxide. Careful siting, design, and operation of DOCCS systems is …

Voices From Beyond The Grave: Protecting The Audio Of Murder Victims Through (Intellectual) Property Law, Alexandra M. Hudson

Washington and Lee Law Review

For most, the audio of a deceased loved one is a treasured keepsake. For the families of violent crime victims, it can be a harrowing reminder of their loved one’s death. And it can also be a source of content for true crime podcasters.

When a person dies from a violent crime and their killer is prosecuted, the audio associated with the crime (body camera footage, 911 calls, surveillance footage, etc.) frequently becomes public record. Public record laws vary greatly across the United States but typically err toward disclosure to promote government transparency. Broad public record laws benefit the public …

Private Coverage, Public Risk: The Role Of Cyber Insurance In National Security Governance, Deborah L. Johnson

Faculty Publications

This Article explores the growing yet underexamined role of the commercial cyber insurance market in shaping the United States' approach to cybersecurity readiness. It argues that, as cyber threats against U.S. critical infrastructure and essential services increase, commercial cyber insurance has quietly come to function as a de facto governance tool in national cybersecurity. In hospitals, water and energy systems, and other public-facing sectors, policy language, underwriting questionnaires, and post-breach claims practices help define what counts as "reasonable" security, influence how organizations plan for and respond to incidents, and affect the pace and scope of recovery after an attack. Yet …

Augmented Advocacy: Ethical Constraints And Regulatory Gaps In Ai-Driven Legal Practice, Molly M. Rowlands

West Virginia Law Review

The rapid advancement of artificial intelligence (“AI”) and particularly generative AI (“Gen AI”) is reshaping the legal profession in unprecedented ways. AI-powered tools enhance efficiency, improve accuracy in legal analysis, and expand access to justice by automating research, contract review, litigation support, and predictive analytics. However, these benefits come with significant ethical, regulatory, and procedural challenges, including competency concerns and AI “hallucinations,” data confidentiality risks, algorithmic bias, and the environmental impact of AI-driven computing. This Note critically examines the evolving role of AI in legal practice and evaluates the inadequacies of existing regulatory frameworks—such as Rule 11 of the Federal …

Front Matter

West Virginia Law Review

No abstract provided.

Practical Reason In The Portfolio Economy: Accept: Amend, Or Abandon, The Flsa?, Kevin Frazier

West Virginia Law Review

No abstract provided.

Individualized Cannabis Reparations, Scott Bloomberg

Faculty Publications

This Article makes an argument that should be obvious. The best way for governments to right the wrongs of cannabis prohibition is to give money to people with cannabis offenses. Nonetheless, this straightforward reform has been consistently overlooked, dismissed, or minimized by policymakers and scholars alike, eschewed in favor of other social equity programs that do not right those wrongs nearly as effectively. Governments have indeed invested hundreds of millions of cannabis tax dollars in social equity licensing programs and community reinvestment initiatives. These programs-while often worthwhile-do not benefit the vast majority of people with past cannabis offenses. Governments should …

The Energy And Environmental Footprint Of Ai, Michael P. Vandenbergh, Ethan I. Thorpe, Jonathan M. Gilligan

Michigan Journal of Environmental & Administrative Law

Artificial intelligence (AI) has the potential to create major economic and social benefits, but also to rapidly escalate electricity demand and its associated environmental impacts. Information availability has been a cornerstone of environmental law for half a century, and this Article argues that providing information to individual, corporate, and other users about the electricity demand and environmental impacts of AI can reduce those impacts without delaying development of the technology. Little is known about how different large language models (LLMs) compare on these metrics, though. To address whether users have access to the information necessary to address this shortcoming, the …

A Guide To The Best Reading Of Environmental Law: Presumptions For Stability In Statutory Interpretation, Sanne H. Knudsen

Michigan Journal of Environmental & Administrative Law

Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities.

On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for …

Reconsidering The Take It Down Act, Cate Thorpe

Brigham Young University Prelaw Review

In the past decade, there has been an increase in digital forgeries leading to the phenomena many have called “revenge porn.” This form of Nonconsensual Intimate Imagery (NCII) has been facilitated by AI-models that allow users to create false images or videos of someone’s likeness, often referred to as deepfakes. In an attempt to combat the dissemination of such forged NCIIs, Congress enacted the TAKE IT DOWN Act. The Act institutes a notice-and-removal procedure for victims to request the removal of  NCIIs depicting their likeness on covered platforms. While the TAKE IT DOWN Act sufficiently addresses some concerns, certain aspects …

Rethinking Antitrust In The Age Of Fintech, Quaid Knell, Olivia Mossman

Brigham Young University Prelaw Review

In cases involving large technology firms, current antitrust laws are proving difficult to enforce when applied through the traditional framework of price-centered metrics. Financial technology (fintech) companies are firms that integrate digital technology into financial services and operate through multi-sided platforms, and they are growing in number. This increased number of firms introduces the next challenge for antitrust enforcement, as traditional definitions of market dominance and monopolistic behavior are ill-suited to the realities of the digital landscape. Although there are no current antitrust lawsuits against major fintech firms, their existing structures and business models, if left unexamined, allow these firms …

“Loophole Of The Century”: Routine Use And The Privacy Act Of 1974, Joslynn Jensen

Brigham Young University Prelaw Review

This Note examines structural weaknesses in the Privacy Act of 1974 and argues that the statute no longer provides meaningful safeguards for personal information held by federal agencies. Enacted in the aftermath of the Watergate scandal, the Act was designed to ensure transparency, accountability, and individual control over government recordkeeping systems. However, two core features—the routine-use exception and the Act’s narrow remedial structure—have undermined these protections. The routine-use provision permits agencies to disclose personal records without individualized consent so long as the disclosure is deemed “compatible” with the purpose of collection and published in the Federal Register, a form of …

Regulating Ai, Jacob Leavitt

Brigham Young University Prelaw Review

Artificial intelligence, a new phenomena embedding itself in every aspect of public life, is advancing at unprecedented rates with potentially catastrophic consequences. While fragmented and reaction regulation frameworks are currently in place, based primarily on tort cases, this paper calls for a hybrid regulatory solution that combines federal administrative law and streamlined international policy. This paper assesses proposed regulatory solutions - tort law, an industry-drafted “AI Constitution,” a Communications Decency Act-style immunity framework, a domestic federal agency, and an international regulatory body. Based on these frameworks, the authors have developed five criteria for an effective solution - expertise, enforceability, obligation, …

Good Faith And The Ministerial Exception, Kailey Hopkins, Nathan Gurr

Brigham Young University Prelaw Review

Following the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, lower courts, in attempting to adhere to the ruling, have largely disregarded the Court’s explicit instruction to avoid adopting a “rigid formula” for determining ministerial status. Instead, they have repeatedly relied on the factors identified in that decision as a functional test. When the Court revisited the ministerial exception, it reaffirmed that no definitive legal standard governs the designation of a “minister,” while modestly broadening the doctrine by emphasizing that formal titles are less significant than functional considerations. This Comment argues that the lower courts’ …

Generative Adversarial Discrimination, Josh Fairfield

Washington and Lee Journal of Civil Rights and Social Justice

Anti-discrimination law assumes that discrimination can be detected and rectified, that the evidentiary burden of the plaintiff can in fact be met. But the evolutionary logic of AI training causes it to target vulnerable groups, lie about reasoning, and above all resist detection. Because of hidden core prompts in generative AI systems, and how those prompts interact with the nature of AI training and deployment, AI will often actively hide discrimination rather than surface and address it. Stopping this will be difficult. At present, neither humans or AI can detect this emergent dark-pattern behavior. Without legal intervention, the broad use …

To Compete Or Noncompete: Lessons On The Impact Of Unenforceable Noncompete Agreements In The Entertainment Industry, Guy Mannick

Washington and Lee Journal of Civil Rights and Social Justice

Economic and legal literature has increasingly focused on how the American legal system fails workers. One way it does so is through employee noncompetition agreements (“NCA” or “noncompete”) that limit a worker’s ability to join another company, often for better compensation and/or more responsibility. Some states enforce NCAs if they are reasonable in scope, geography, and duration; others either prohibit their application to certain types of workers or (as in California) outright prohibit them in most circumstances. More narrowly, new empirical literature about the behavioral effects of unenforceable noncompete agreements raises new questions about the behavioral impact on workers.

This …

Reel It In: Untangling The Circuit Split On The Constitutionality Of Geofence Warrants Under The Fourth Amendment, Kate P. Risser

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines geofence warrants and their ongoing threat to constitutionally protected rights such as privacy, speech, and assembly. Part I will provide background information on geofence warrants and examine the prominent justifications for the use of the warrants. Part II will examine how law enforcement’s use of geofence warrants threatens citizens’ constitutionally protected fundamental rights like privacy and reproductive rights. Specifically, Part II addresses how geofence warrants disproportionately target and affect women, people of color, and low-income individuals. Part III will detail the history of the Fourth Amendment tracing its roots to before the Founding Era then exploring applicable …

The Pennsylvania Bar Association Quarterly: A 10-Year History Volumes 87-96 (2016-2025), Joel Fishman

Law Faculty Publications

This article is the second supplement to my previous two articles covering the history of The Pennsylvania Bar Association Quarterly.² For the period of this article, Robert E. Rains, Professor Emeritus, Penn State Dickinson Law, has been the editor, replacing Professor Louis Del Duca, who had served as editor for an amazing 47 years. The January 2016 issue appropriately began with two articles in homage to Prof. Del Duca.³

Securing Safe Transitions: A Policy Argument For Sb 434’S Strengthened Eviction Safeguards, Eric Brown

University of the Pacific Law Review

No abstract provided.

Above The Flames: Autonomous Aircraft And The Evolution Of Wildfire Response, Hakela Hapner

University of the Pacific Law Review

No abstract provided.

Ab 412: A Failed Attempt At Balancing Artificial Intelligence And Copyright, Erin Forger

University of the Pacific Law Review

No abstract provided.

Arbitration Vs. Consumer Rights: How Sb 82 Further Diminishes Public Trust And Understanding Of The Arbitration Process, Peter Liu

University of the Pacific Law Review

No abstract provided.

Ab 446: Why The Answer To “How Much?” Should Never Be “It Depends.”, Dalton Mabery

University of the Pacific Law Review

No abstract provided.

Look What You Made Me Do: Common-Sense Inferences About Independent Decision-Makers In Standing Law, Eli Bartz

Missouri Law Review

On a rainy evening in 2009, John Coomer was sitting behind the visitor’s dugout at Kauffman Stadium. Between innings, Coomer looked at the scoreboard, and the Kansas City Royals’ mascot Sluggerrr threw a hot dog into the stands, hitting Coomer in the eye and detaching his retina. Coomer sued the Royals for negligence, but the jury found in the Royals’ favor. The Missouri Supreme Court overturned the jury verdict, holding that, while spectators assume the risks of balls and bats flying into the stands, they do not assume the risk of flying hot dogs. The ruling sparked controversy, with one …

Teaching A Social Justice Approach To Leadership In Law Schools, Tamar Ezer

Articles

Leadership is critical for social justice. Our law students have the potential to serve as future social justice leaders, building strong organizations and movements to carry out this work. Drawing on both leadership theory and practical examples from clinical legal education, this piece argues for a broad definition of leadership, embracing diversity and encompassing the counter-cultural values of listening and humility. It further proposes a three-dimensional model of social justice leadership, engaging the mind, heart, and spirit, and suggests teaching practices to strengthen each component. The first dimension focuses on cognitive competencies, including substantive mastery of an area of law …

Uncovering Settlements: Problems, Opportunities And Solutions For Settling Liability Cases In Which Insurance Coverage Is In Dispute, Marialuisa Gallozzi, Jodi Mcdougall, James Murray, Catalina Sugayan

Connecticut Insurance Law Journal

No abstract provided.

Artificial Intelligence In The Insurance Industry And Bad Faith Risk, Mary E. Borja, Edward J. Currie Jr., Lorelie Masters

Connecticut Insurance Law Journal

No abstract provided.

An Ethics Conundrum: What Am I? Coverage Counsel Or Claim Investigator Or Both?, Neil B. Posner

Connecticut Insurance Law Journal

No abstract provided.

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

The Addison C. Harris Lecture: Intellectual Diversity Mandates And The Freedom To Teach, Keith E. Whittington

Indiana Law Journal

This Essay provides the first examination of the Indiana Senate Bill 202, which was adopted into law in the spring of 2024. The new law imposes an “intellectual diversity” mandate on public university classroom teaching in the state. The law is novel in its approach but is part of a larger movement to intercede in what is taught in university classrooms. The intellectual diversity mandate raises difficult and unexamined conceptual, normative, and practical problems that will now demand attention from university officials in Indiana and that might soon confront university administrators in other states across the country if the Indiana …