Digital Commons Network^™

Considerations For Assigned Water After Expiration Of The 2007 Guidelines, Kathryn Sorensen, Sarah Porter, Anne Castle, John Fleck, Eric Kuhn, Jack Schmidt, Katherine Tara

The Traveling Wilburys of the Colorado River

As Colorado River supplies and demands reach razor-thin margins, new tools to provide adaptive capacity will play a critical role in sustaining communities across the West. We must reduce our consumption of water, while finding ways to cushion the impact. One of the most innovative tools for doing this, developed over the last two decades, is “Assigned Water” - giving users the ability to store conserved water earmarked for their own future use. Originally developed as “Intentionally Created Surplus” in the 2007 Colorado River Interim Guidelines, Assigned Water has been revised and expanded through U.S. Mexico Treaty Minutes and as …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Remote Access Restrictions To Immigration-Related Court Records, Doris H. Zhang

Fordham Law Review

Journalists today often report on newsworthy federal court cases by remotely accessing the court records online. However, thanks to Federal Rule of Civil Procedure 5.2(c), remote access is not available by default in immigration-related cases. To obtain any court records in immigration cases, journalists must go to the courthouse, hire someone to go on their behalf, or ask the court to exercise its discretion to lift the Rule 5.2(c) remote access restrictions. These alternatives are burdensome, hindering the ability of the press and the public to keep track of immigration cases in federal courts. Despite the burdens on the press …

The Fight For Public Rights On America’S Waterways, Mark Squillace

Colorado Environmental Law Journal

No abstract provided.

People Over Paper: The Effectiveness Of International Agreements Under Treaty Capture, Eric Nicholson

Colorado Environmental Law Journal

No abstract provided.

The Direct-Derivative Divide In Florida Shareholder Litigation, Itai Fiegenbaum

St. Thomas Law Review

This Article analyzes the evolving jurisprudence surrounding the classification of shareholder claims in Florida business entity litigation. Shareholder and member lawsuits take one of two forms: direct claims, which allege personal harm to the entity owner, and derivative claims, which seek redress on behalf of the entity. While both aim to deter insider misconduct and ensure accountability, the procedural posture and practical consequences of each are dramatically different. Direct claims allow shareholders immediate access to judicial relief. Derivative claims, by contrast, impose significant procedural hurdles that often preclude review on the merits. The proper classification of a claim is therefore …

Regulation By Deposit Insurance, Todd Phillips

Marquette Law Review

The fact that the United States has three banking regulators poses challenges to the Federal Deposit Insurance Corporation (FDIC) in carrying out its statutory mandates. The agency relies on other regulators with priorities different from its own to limit the risks that banks take, to require holding companies to take losses before the FDIC in case banks fail, and to enforce the FDIC’s regulations. Moreover, the FDIC cannot enact its preferred policies if it wishes to avoid a regulatory race to the bottom with other regulators.

This Article proposes a novel solution to this well-known problem: regulation by deposit insurance. …

Public Rights, Democracy, And The Separation Of Powers, James L. Huffman

Marquette Law Review

This Article examines the concept of public rights in the contexts of democratic governance and the constitutional separation of powers. While the concept of public rights has a long history in Anglo-American law, over the last several decades, the term is often employed with only vague reference to its historic meanings and with little or no definition. With reliance on the centrality of the concept of rights in American constitutional government, it is commonly claimed that public rights, like private rights, can be enforced in the courts as constraints on legislative and executive actions.

In American caselaw public rights have …

Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection And The New Noncitizen Land Laws, Jill M. Fraley

Scholarly Articles

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty rather than an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently …

Discipline With Due Process: Constitutional Safeguards For Student Speech After Plaintiff A, Sarah Stich

Missouri Law Review

When fifteen-year-old Louie posted a TikTok video criticizing his school’s disciplinary policies from his bedroom, he faced a month-long suspension despite having no notice of which policies he had violated. Across the country, Kaitlin shared a Snapchat criticizing her chemistry teacher with friends at a local coffee shop and faced expulsion with minimal opportunity to explain the context. In both cases, students received limited procedural protections before suffering severe academic consequences.

Ten Commandments Cases: Learning From Reformation Coercion, Paul E. Mcgreal

Michigan Law Review Online

The Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and …

The Indelible Flaws Of Conviction Integrity Units, Sarah Gottlieb

Scholarly Articles

Conviction Integrity Units within prosecutors’ offices have doubled in number over the last 10 years. Leaders of the innocence movement initially praised these units, believing they were necessary for the future of innocence work given their unique access to discovery, and scholars hoped Conviction Integrity Units would lead prosecutors away from fighting against claims of innocence to sincere and open review of wrongful convictions. But, as Conviction Integrity Units proliferated, the question of whether prosecutors can fulfill the mandate of these offices and conduct thorough review of their colleagues’ work has received insufficient inquiry, particularly given that official misconduct continues …

From Player Piano To Generative Ai: Artificial Expression And The Law Of Copyright, Douglas Lind, Adrienne Holz

Fordham Intellectual Property, Media and Entertainment Law Journal

American copyright law has experienced challenges and sometimes faltered when confronting mechanical reproduction. This Article retraces the rise and diffusion of the player piano and the phonograph, examining how they reshaped the making and listening to music. As these technologies spread throughout American society more rapidly than copyright law could adjust, courts misclassified piano rolls and records as merely mechanics. Reducing these new fixations to machinery rather than embodiments of human expression left recorded human musical performances inadequately protected, which facilitated piracy. Applying these lessons, this Article contends that generative AI training implicates copyright law in ways not dissimilar to …

Witness And Record On Complicity And Clergy Abuse, Scott Douglas Jacobsen, Amos N. Guiora, Katherine Archer, Hermina Nedelescu, Melanie Sakoda

Utah Law Faculty Scholarship

This first anthology assembles a multi-jurisdictional set of interviews to examine clergy abuse and institutional responses. The primary emphasis is Orthodoxy contexts and comparative discussion across religious settings. The core material consists of advocacy perspectives, firstperson accounts, and professional analyses. We need thoughtful clergy to speak out. The core problems: sexual abuse, spiritual abuse, power-asymmetrical relationships, and failure in impartial authoritative mechanisms of consequence, acting or even existing, in the first place.

“No One Can Hear You Scream”: Intimate Partner Violence And Family Justice Centers In Rural America, Jordan Stevenson

Legal Writing Competition Winners

In rural Kentucky, where cars are a necessity to traverse the rugged Appalachian Mountains and sparsely populated farmlands, “Barbara’s” abusive husband couldn’t let her get away—so he set her car aflame. Although census-defined rural areas contain only 20% of the United States population, some studies have found that intimate partner violence is more common and severe in rural areas than urban or suburban regions. 

People, especially women, in rural areas experience intimate partner violence in unique ways tied to their geographic and cultural context. Consequently, organizations, courts, and law enforcement struggle to meet the needs of affected populations in rural …

Cloudy Oversight: How Administrative Conflict Over International Airline Alliances’ Antitrust Immunity Harms Consumers Of Commercial Air Transportation., Hamin Jeong

American University Business Law Review

Antitrust law governs and guides how regulatory agencies should scrutinize unfair, monopolistic corporate behavior. However, when several different agencies are tasked with enforcing the same legal principles, different interpretations of such principles inevitably arise.

 The U.S. Department of Justice (DOJ) acts as the main body that enforces antitrust actions in the domestic airline industry, but there is an exception to the general rule. Congress delegated the U.S. Department of Transportation (DOT) the authority to grant antitrust immunity to international airline alliances, which form when domestic and foreign airlines partner to increase flight services between their respective nations.

However, as codified …

Ai In The Vault: Ai Act's Impact On Financial Regulation, Maria Lucia Passador

Loyola University Chicago Law Journal

The AI Act, a pioneering legislative framework, classifies AI systems based on their risk levels and mandates stringent requirements for high risk systems to ensure transparency, accountability, and protection of fundamental rights. This Article further addresses the critical intersection of AI technology and prudential supervision, highlighting the significant roles of the AI Office, and the AI Board in the governance and oversight of AI applications in finance.

Despite existing literature focusing on the integration of AI in banking supervision and the associated risks, gaps remain in understanding how these regulatory frameworks can effectively oversee AI's transformative impact on financial markets. …

Tax Laws And Proportionality: Analyzing Implementation And Advocating For Reform, Moshe A. Jaffe

SJD Dissertations

The application of judicial review to tax legislation presents unique challenges and inconsistencies. This study contends that the proportionality doctrine, widely used in numerous legal systems, offers the best framework for reviewing the constitutionality of tax laws. By examining the implementation of proportionality in countries such as Germany, Israel, and Canada, this research argues that adopting this doctrine—excluding the Stricto Sensu sub-test—could provide a more consistent and fair method for judicial review of tax legislation. Specifically, this approach avoids the indeterminacy and subjectivity often associated with open-ended balancing, while still ensuring that tax measures serve legitimate aims and employ means …

Havens For Corporate Lawbreaking, William J. Moon

Faculty Scholarship

Whether corporations are obligated to maximize profits or if they ought to consider societal interests more broadly remains one of the most highly contested debates in corporate law. Yet even the fiercest defenders of the firm’s profit motive concede that the corporation’s profit-seeking function cannot justify breaking the law. As a matter of American corporate law, directors and officers are in breach of their fiduciary duties if they facilitate or engage in profit-maximizing illegal activities. Or so we thought.

This Essay reveals a troubling trend of jurisdictions undercutting the legal compliance obligations of directors and officers. The current legal architecture …

Undemocratic: Antiabortion Politicians’ Attacks On Direct Democracy, Deborah Machalow

Journal of Race, Gender, and Ethnicity

This Article will highlight examples of antiabortion politicians abusing their positions throughout the initiative process to maintain their preferred antiabortion status quo during the 2024 election cycle, before Election Day—despite broad and increasing support for legal abortion. Ultimately, in only Arkansas, Florida, Nebraska, and South Dakota, antiabortion politicians succeeded; in Arizona, Colorado, Missouri, Montana, and Nevada citizens voted to expressly protect abortion in their state constitutions through the citizen-led initiative process.

Bodily Autonomy After Dobbs: A Queer Black Perspective, Eliot T. Tracz

Journal of Race, Gender, and Ethnicity

This article considers the impact of the Dobbs ruling from a black, queer perspective. It argues that the ripple effect of the Dobbs decision threatens the safety of queer black people in ways which, due to poor data collection, may not be widely understood or analyzed. It then suggests several ways in which the state and federal government can avoid these outcomes. Section II discusses the concept of bodily autonomy and the impact of the Dobbs decision. It begins by defining bodily autonomy as a concept with emphasis on the cases upon which it is founded. It then moves on …

Impact Of Vague State Tax Collection Alternatives On Low-Income Taxpayers, Sakinah Tillman

Journal Articles

Benjamin Franklin stated, “In this world, nothing is certain except death and taxes.” While death is inevitable, navigating the complexities of state tax laws and procedures for paying state tax debt is far from straightforward. State tax laws are unnecessarily complex, disproportionately burdening low-income taxpayers, especially Black and Brown individuals. These taxpayers face systemic inequities and ambiguous collection alternatives that trap them in perpetual cycles of debt and noncompliance. ...

applies to state tax collection procedures and analyzes how state tax systems disproportionately impact low-income taxpayers, particularly Black and Brown individuals.36 Part II of this Article addresses how vague statutes, …

Collaborative Nullification: Bending Or Ignoring The Law To Free The Over-Punished, David A. Singleton

Journal Articles

The United States accounts for about 25% of the world’s prisoners but only about 5% of its population. It has the fifth highest imprisonment rate—higher than China and Russia—with people of color disproportionately impacted. This racialized mass incarceration, and the lack of political will to meaningfully address it, demands bold remedies. ...

So, what should attorneys do for clients like Pat when no viable release mechanisms remain: concede defeat and move on, or collaborate with those who are willing to ignore the law and grant release anyway?

This article proposes that the second option, which I call “collaborative nullification,” can …

Computational Clinical Judgment: Predicting Risk With Large Language Models, Hannah Laqueur, Ryan W. Copus

Faculty Works

For seventy years, research has shown actuarial methods outperform clinical judgment. Yet actuarial approaches have limitations: they generally rely on structured data; cannot exploit rare case-specific details; have limited accuracy where outcome data are scarce or incomplete; and cannot offer case-level justifications. Large language models (LLMs) offer a different approach. Like actuarial methods, they aggregate information algorithmically, but like clinicians, they bring general knowledge and can provide case-level justifications. We prompted seven LLMs to assess rearrest risk from 113 parole hearing transcripts and compared their predictions to a machine learning model trained on 4,000 cases with 91 administrative variables. GPT-5 …

First Amendment Protection For Unlicensed Wellness Coaches, Barbara Zabawa

Faculty Works

This article examines the constitutional implications of state efforts to license unregulated wellness practitioners, particularly wellness coaches. As occupational licensing expands, wellness services—ranging from nutrition counseling and life coaching to mindfulness and holistic practices—face increasing scrutiny. The paper argues that most wellness coaching involves speech rather than conduct and therefore qualifies for First Amendment protection. Drawing on Supreme Court and lower court precedent, it distinguishes between professional judgment that may justify state regulation and speech-based coaching practices that pose minimal risk of harm. The analysis situates wellness coaching within broader debates over professional regulation, consumer empowerment, and the marketplace of …

How Should The Law Treat Future Ai Systems? Fictional Legal Personhood Versus Legal Identity, Heather Alexander, Jonathan Simon, Frédéric Pinard

Journal of Law, Technology, & the Internet

The law draws a sharp distinction between objects and persons, and between two kinds of persons, the ''fictional'' kind (i.e. corporations), and the ''non-fictional'' kind (individual or ''natural'' persons). This paper will assess whether we maximize overall long-term legal coherence by (A) maintaining an object classification for all future AI systems, (B) creating fictional legal persons associated with suitably advanced, individuated AI systems (giving these fictional legal persons derogable rights and duties associated with certified groups of existing persons, potentially including free speech, contract rights, and standing to sue ''on behalf of'' the AI system), or (C) recognizing non-fictional legal …

Ai Training Is Fair Use: The Beginning Of The End Of The Copyright Assault On Gen Ai, Michael D. Murray

Journal of Law, Technology, & the Internet

Two federal courts overseeing claims against the developers of generative artificial intelligence (GenAI) have pointed the way to resolving these infringement actions by finding that the training of GenAI models is a transformative fair use under copyright law. While the two opinions differed in tone and scope, this article takes these rulings as the starting point for a discussion on resolving the ongoing copyright claims against AI developers, signaling what may be the beginning of the end of the copyright assault on GenAI.

The goal of this article is to inject urgency into resolving these matters. It asserts that uncertainty …

The Case Against State Emotional Support Animal Documentation Laws, Krista Wirth

Animal Law Review

Under the Fair Housing Act (FHA), a tenant with a service animal or emotional support animal (ESA) may request a reasonable accommodation from their housing provider to have their assistance animal live with them in housing that might not otherwise permit animals. In recent years, several states have implemented laws that aim to address “fraudulent” emotional support animals (“state ESA laws”). These laws limit the types of acceptable verifying documentation or place requirements on a healthcare provider’s ability to produce documentation to verify an individual’s disability and disability related need for a support animal—documentation an individual often needs to support …

The Last Human Question: Generative Ai's Existential Threat To Consensus And Law, Joshua Fairfield

Scholarly Articles

The true risk of artificial intelligence (“AI”) is not that the toasters will rise up. It is that AI will be competent to perform human tasks and indifferent to human welfare. The risk is that we will be outcompeted by generative automated processes that create output similar to ours (although never the same, as this Article explains), but which need none of the outputs of the economy for food, shelter, or human flourishing. Further, a more precise and existential description of the threat is that generative AI will disrupt and crowd out humanity’s evolutionary superpower, our ability to generate agreement …

Leadership In Chaos: Law Enforcement Perspectives On Addressing The Missing Piece Of Nims, Joshua Pierce

Theses, Dissertations and Capstones

The purpose of this qualitative study was to investigate the perceptions of law enforcement leaders regarding how to address the missing piece of the National Incident Management System (NIMS): the initial, chaotic phases of large-scale incidents. Specific elements investigated included the major challenges faced by incident commanders, the necessary knowledge and skills required, effective training models, the receptivity of the law enforcement community to new and/or additional training, any perceived implications for personnel, and evidence-based guidelines and recommendations from policymakers and leaders. Purposeful, convenience, and snowball sampling were used to select study participants. Study participants (n=20) were active, sworn law …