Digital Commons Network^™

Reclaiming The Constitution: "For There Is Always Light, If Only We're Brave Enough To See It", Palma Joy Strand, Gregory J. O'Meara S.J.

Marquette Law Review

As citizens—and as lawyers—we are schooled to view the U.S. Constitution as what—indeed—“constitutes” us as a nation and as a people. As lawyers— and as citizens—we are also schooled to understand that the Constitution is law and that its meaning is to be ascertained through the process of law and by lawyers and judges. This Article builds on a popular constitutionalism frame to describe the profound limitations of restricting constitutional meaning-making to a legal enterprise performed primarily by judges—especially in regard to positive rights written into the Constitution but under-protected in constitutional law. In addition, litigation’s either–or mindset has come …

The First Amendment Right To Privacy, Alex Chemerinsky

Marquette Law Review

The First Amendment is often considered to be in tension with privacy. This

Article is about the contexts in which it is not.

Although freedom of speech can pose challenges for privacy governance,

privacy is a core First Amendment value. Many important First Amendment decisions were motivated more by intuitions about privacy than any other interest. For each primary First Amendment liberty—the rights to speak, listen, associate, and practice religion—the Supreme Court has recognized not only a

substantive liberty but also the right to exercise it privately.

But although expressive privacy is an important First Amendment value, it

remains underrecognized, …

Re-Evaluating Deshany In An Era Of Gun Violence And Government Inaction, Bonnie Carlson

Marquette Law Review

In DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that the State has no constitutional duty to protect individuals from violence committed by private third parties. An exception to this rule exists when the State has a special relationship to the plaintiff immediately preceding the harm. The DeShaney Court sharply proscribed the scope of the special relationship exception, holding that it only applies when the State has a plaintiff in custody. This effectively closes the door on relief for the vast majority of 42 U.S.C. § 1983 plaintiffs.

This Article proposes a new special relationship test …

Gerrymandering The Electoral College, Henry S. Noyes

Marquette Law Review

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering is a nonjusticiable political question. The Court’s opinion admits that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” The injustice is the ability of the majority party to use political gerrymandering to entrench itself as the governing party and to remain so, long after that party falls out of favor.

Although Rucho was an Elections Clause case, it is easily applicable to states’ exercise of their Electors Clause power. Republicans will wield this new, nonjusticiable power (and the concomitant political cover that it provides) …

Standalone Frisks, Elias Neibart, Bobby Levine

Marquette Law Review

We all think we understand Terry v. Ohio. But we don’t. In fact, for decades, we’ve taken the wrong doctrinal lesson from Terry and its progeny.

Even though Terry discussed the constitutional standards surrounding “stop-and-frisks,” many of us have interpreted Terry as only permitting a “stop-and-then-a-frisk”—that is, a police officer is permitted to stop an individual on the suspicion that he is about to engage in criminal activity, and then, and only then, can that officer frisk the individual if he believes the suspect is armed and dangerous. But that’s not right. The Terry Court never said that. And …

Are Judges Influenced By Dollar Amounts? Evidence From Tax Law, Jonathan Farrar, Thomas Farrar, Harjot Mehmi

Dalhousie Law Journal

We investigate whether idiosyncratic features of numbers in dollar amounts unconsciously bias judges. If so, appellants’ likelihood of success could depend on the dollar amount under dispute. Specifically, we examine the following: whether the first digit in a dollar amount follows the frequency distribution predicted by Benford’s Law, and, accordingly, whether the likelihood of appellants’ success varies with the first digit of their disputed dollar amount; round number bias, which is the psychological tendency to prefer round numbers (ending in 0) over other numbers; and even-odd number bias, which is the psychological tendency to ascribe different characteristics to even numbers …

Leadership In The Law: Perspectives From The Nyc Law Department's Family Court Division, Jennifer Gilroy Ruiz

NYLS Law Review

No abstract provided.

Managing Through Crisis At The Nyc Law Department: Lessons Learned From The Covid-19 Pandemic, Hon. Asim Rehman

NYLS Law Review

No abstract provided.

Neutral By Title, Professional By Practice: Ethics As Our Guiding Compass, Justice Tanya R. Kennedy

NYLS Law Review

No abstract provided.

How Court-Appointed Neutrals Can Be Truly Helpful To Judges And The Courts, Judge Timothy S. Driscoll, Kathleen N. Massey

NYLS Law Review

No abstract provided.

Court-Appointed Neutrals: A Judicial Perspective

NYLS Law Review

No abstract provided.

Protecting The Debtor Across The Atlantic: A Comparative Analysis Of The United States And European Union Regulatory Frameworks Against Debt Collection Abuse And Harassment, Terin Michelle Tyson

South Carolina Journal of International Law and Business

Consumer debt is a long-standing global phenomenon, yet the regulation of debt collection practices remains fragmented across international borders. This lack of uniform standards leaves consumers vulnerable to debt collectors who exploit weak legal frameworks, resorting to abusive, harassing, and deceptive tactics to pressure repayment. Such practices not only undermine consumer trust in the financial services industry but also prove self-defeating; aggressive collection methods can destabilize a consumer’s financial footing and daily livelihood, ultimately impairing their capacity to repay.

This article provides a comparative evaluation of consumer protections against abusive and harassing debt collection practices in the United States and …

Exporting Bankruptcy: China’S Jurisdictional Gambit Under Chapter 15, Jason Jia-Xi Wu, Chentuo Zhu

Emory Bankruptcy Developments Journal

China’s distressed corporate giants are increasingly turning to U.S. bankruptcy courts. Instead of seeking discharge under China’s own bankruptcy system, a growing wave of Chinese megafirms—often state-backed and systemically important—are pursuing cross-border insolvency relief under chapter 15 of the U.S. Bankruptcy Code. This trend raises urgent questions: Why are China’s largest companies reaching across the Pacific to restructure? And how are their filings reshaping entrenched U.S. bankruptcy practices in ways that diverge from other foreign debtors?

At the heart of this phenomenon is a calculated, multi-jurisdictional forum shopping strategy. Chinese debtors typically begin by incorporating a shell …

Limits On Damages For Breach Of A Forum Selection Clause, John F. Coyle, Tanya Monestier

Faculty Publications

When a plaintiff sues in a court other than the one designated in a forum selection clause, the defendant’s remedial options are limited. It can ask the court to dismiss the case outright. Or it can ask the court to transfer the case to the designated forum. The defendant typically cannot, however, recover money damages—in the form of attorneys’ fees and related expenses—that it incurs in the course of persuading the court that transfer or dismissal is appropriate. This is because the conventional wisdom among judges has long been that damages are not available for breach of a forum selection …

Working Families V Ontario: Toward A Principle Of Voter Agency, Jamie Cameron

Articles & Book Chapters

In Working Families v. Ontario, the Supreme Court’s interpretation of the right to vote was complicated by the triangulation of s.2(b), s.3, and s.33 of the Charter. After Ontario’s twelve-month spending limits on third-party advertising were invalidated under s.2(b) of the Charter the government of Ontario re-enacted the same limits and added an override provision to pre-empt review under that guarantee. In the s.3 litigation that followed – referred to in this article as Working Families 2 – the Supreme Court held, by 5-4 vote, that the same third-party spending limits violated s.3’s right to vote. This short …

Insurance And Chapter 11 Bankruptcy: Is The Insurance Neutrality Doctrine Dead?, Mikaela Deleon

Emory Bankruptcy Developments Journal

Insurers have traditionally been denied “party in interest” status under the Bankruptcy Code due to the longstanding insurance neutrality doctrine. The insurance neutrality doctrine prevents insurers from challenging a chapter 11 bankruptcy plan as a section 1109(b) “party in interest” if the plan does not increase the insurance company’s liability from pre-bankruptcy levels. If none of their rights or obligations were impacted by the plan, insurance companies were previously left without a means to challenge a proposed reorganization plan. As a result, insurance companies providing liability insurance to corporations stricken with mass tort lawsuits ran the risk of becoming the …

Expanding State Tax Authority: Public And Private Sector Impacts Of Wayfair, Maxwell Pastoria

Williams Honors College, Honors Research Projects

The 2018 Supreme Court decision in South Dakota v. Wayfair, Inc. (Wayfair) overturned the longstanding physical presence rule for state sales tax collection, enabling states to enforce tax obligations on remote sellers through marketplace facilitator and economic nexus laws (Oyez, 2018). This study investigates the effects of these two post-Wayfair tax laws on state sales tax revenues, entrepreneurship, and public expenditures across all 50 states. Using a two-way fixed effects difference-in-differences (TWFE DID) framework, this research analyzes how policy adoption influenced per-capita outcomes in tax revenue, firm formation, and government spending in social services, education, infrastructure, and …

Managing Deportation: How Docket Control Replaced Substantive Relief In Immigration Courts, R. Linus Chan

SMU Law Review

In the modern deportation era, immigration courts saw their ability to grant relief from deportation undergo significant restrictions, constraining individualized discretion in favor of "categorical" denials. Congress dramatically curtailed the discretionary tools available to immigration judges, with the latest being the pair of immigration reforms from 1996, shifting the locus of individualized decision-making away from the courts and toward enforcement officers and prosecutors. Immigration courts lost discretion in being able to decide who could formally be granted status and stay in the United States when facing deportation through various restrictive eligibility requirements written into the law.

This Article argues that …

Fda After Loper Bright, Erika Lietzan

SMU Law Review

Loper Bright Enterprises v. Raimondo, which overruled the Chevron, U.S.A. v. Natural Resources Defense Council decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself, rather than deferring to the views of the federal agencies that implement those provisions. But the overruling of Chevron may have less of an impact on the U.S. Food and Drug Administration (FDA) than conventional wisdom supposes. Most challenges to FDA action do not concern its statutory interpretations. And the agency prevailed in most cases involving statutory interpretation before the Chevron doctrine took hold. After 1984, …

Uncertain Enforcement And Standing To Sue, Ernest A. Young

Faculty Scholarship

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Faculty Scholarship

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

Corporations’ First Amendment Rights And Algorithmic Cocoons, Sol Murgui Orsucci

Fordham Journal of Corporate & Financial Law

This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …

Boundaries Of Rules: Social Reactions To Legal Intervention, Francesco Parisi

Articles

This chapter examines what happens at the boundaries of rules: when social practices acquire legal recognition, when legal rules seek to reshape social expectations, and when formal and informal enforcement operate together. The conventional economic model treats the expected formal sanction as the principal source of compliance. Although this model provides a fundamental benchmark, it captures only part of the effects of legal intervention. The taxonomy developed here identifies the different ways in which legal, moral, and social incentives may interact. The kinds of public and private enforcement through which individuals express norms shape the additive, nonadditive, and countervailing effects …

Two Questions For School-Choice Funding After Carson, Nicole Stelle Garnett, John A. Meiser

Journal Articles

In a series of recent cases, the Supreme Court of the United States has made clear that the First Amendment's Free Exercise Clause prohibits religious discrimination in public benefit programs. That is, when the government creates a public benefit program, the Free Exercise Clause prohibits it from excluding private entities from participating because of their religious character or status or because they engage in religious conduct. This essay addresses two questions raised left unresolved by these cases and flags a third. The first question is, what is private? The religious nondiscrimination principle applies only when the government aids private conduct. …

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …

Ain’T Nothing Like The Real Thing: How Legal Research Programs Can Provide The Needed Safety Rails For Pro Se Litigants Using Ai In Litigation, Nicole Belbin

Faculty Scholarship

An estimated 92% of legal needs go unmet in America, leaving a growing number of pro se litigants to “manage their own cause.” Between 2000 and 2019, 27% of all civil cases filed in U.S. District Courts, totaling 1,501,079 cases, had at least one party without attorney representation. The legal profession is abuzz about the potential for generative artificial intelligence (GenAI) tools to “smooth out any mismatch between available resources and urgent needs in our court system”; however, “hallucinations” have quickly proved a limitation to reaching this technology’s full potential. The complexity of legal research and analysis increases the chance …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Cardozo Law Review

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …