Digital Commons Network^™

Artificial Intelligence, Tribal Sovereignty, And The Criminal Justice System, Kevin Angelo Brown

South Dakota Law Review

As artificial intelligence (“AI”) has become increasingly integrated into everyday life in Indian Country and into governmental functions, including policing, courts, and corrections, it is creating new circumstances that can undermine tribal sovereignty. The 575 federally recognized Tribal Nations are under significant pressure to maintain their sovereignty while adapting to new AI-based technologies. With the implementation of AI, tribes should retain control over how it is used to benefit their communities, without compromising their legal rights or well-being, particularly in light of past harms caused by inadequate legal protections that allowed technological developments to damage tribal health, environments, economies, and …

The Tribal Wills At Usd's Knudson School Of Law: A Study In Mutuality, Nimbleness, And Persistence, Thomas E. Simmons

South Dakota Law Review

No abstract provided.

The Ambitions Of History And Tradition In And Beyond The Second Amendment, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi, the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate …

The Impact Of Substance Abuse Problems And Serious Mental Illness/Serious Emotional Distress On Post-Discharge Residential Status Among Clients With Behavioral And Cognitive Disorders: Evidence From Samhsa Mh-Cld Data, Eden Moges, Norma Rochez, William Peycha, Aditya Chakraborty

Epidemiology, Biostatistics, & Environmental Health Faculty Publications

BACKGROUND: Behavioral and cognitive disorders can undermine housing stability, a key determinant of mental health recovery, with persistent disparities across demographic and socioeconomic groups. This study examined the associations of substance abuse problems (SAP) and serious mental illness/serious emotional distress (SMISED) with residential status at discharge from mental health facilities.

METHODS: This cross-sectional study used the utilized data from the Substance Abuse and Mental Health Services Administration (SAMHSA). Descriptive statistics were used to summarize demographic characteristics, whereas univariate and multivariable logistic regression models were employed to assess associations between the covariates and the residential outcome, adjusting for a variety of …

Restorative Restitution, Lula A. Hagos

American University Law Review

How to best meet the needs of crime victims while also furthering the imperative of decarceration has long vexed advocates and scholars alike. This dilemma comes into sharp focus when one examines two developments in criminal procedure that, until now, have been analyzed separately: victim restitution and restorative justice.

Criminal restitution, the monetary payments ordered from defendants to victims, often fails both groups. Because most defendants are indigent, restitution obligations lengthen defendants’ involvement with the criminal legal system without delivering meaningful compensation to victims, making restitution more symbolic than restorative. At the same time, interest in restorative justice has surged …

Playing It Safe Or Playing Favorites? Miller Act Bonds And The Cost Of Exclusion Of Women- And Minority Owned Businesses, Fernando Mendoza López

American University Law Review

As federal contracting policy has moved away from race- and gender-conscious contracting initiatives, the need to identify and remove facially neutral requirements that create disparate impacts has assumed heightened significance in shaping access to government contracting law. In construction projects, the federal government has long required contractors to purchase surety bonds under the Miller Act to protect subcontractors and the government in cases of prime contractor default. While that original purpose remains valid today, bonding requirements are widely believed to unnecessarily limit participation by women- and minority-owned businesses.

Federal, state, and local governments have tacitly accepted the claim that bonding …

“Necessary” Jurisdiction: Veterans’ Rights In Article Iii Courts, Dana Montalto

American University Law Review

U.S. veterans should possess the same access to courts as other Americans, but a misreading of a federal law has led many veterans to be denied an opportunity to assert their civil rights in any judicial forum. That law—38 U.S.C. § 511—grants exclusive jurisdiction over certain federal veterans benefits appeals to a specialized Article I court, the Court of Appeals for Veterans Claims. But federal judges and Department of Veterans Affairs leaders have mistakenly interpreted that grant of exclusive jurisdiction to also close the door to Article III courts, leading veterans’ meritorious claims of systemic discrimination and injustice to be …

Antidiscrimination Law Against Labor, Jordan Laris Cohen

American University Law Review

In recent years, employer compliance with antidiscrimination law has emerged as a major justification for limiting the rights of employees to organize and engage in collective action in the workplace. In IBM Corp., a Republican majority of the National Labor Relations Board cited “laws addressing workplace discrimination and sexual harassment” as a primary reason to deny nonunionized employees the right to a coworker representative during investigatory interviews. In General Motors, a Republican Board majority invoked antidiscrimination law in upending four decades of precedent regarding employer discipline of employees engaged in “opprobrious conduct” in the course of protected organizing …

The Lawyer Of The Future: Ethics And Identity In The Age Of Ai, David Yosifon, Michael Santoro, Isaac Nikssarian

American University Law Review

The dawn of artificial intelligence (AI) poses a fundamental challenge to the legal profession’s practical function and social identity. We argue that this challenge should be met as an opportunity to reclaim the profession’s core ethical intentions. We approach the emergence of AI as an occasion to define and safeguard what is irreducibly human in legal work. We ground our approach in the ethical imperatives set out in the American Bar Association’s Model Rules of Professional Conduct, while extending them into an invigorated framework for the AI era.

We survey the uses and ethical challenges associated with cutting-edge deployment of …

By Design, Roger Allan Ford

American University Law Review

In recent years, scholars and policymakers have increasingly embraced regulation “by design” to address new problems, especially those caused by new technologies. These approaches go by various names, like privacy by design, security by design, even the rule of law by design. Despite the popularity of these approaches, though, describing what goes into regulation “by design” is surprisingly challenging. Different speakers use the term in strikingly different ways, with little consensus about why design is important, how design and new technologies interact, or how design can be harnessed to deliver policy results.

Design exists along multiple dimensions: process versus result, …

The Trademark Bargain: Registration As Disclosure, Dustin Marlan

American University Law Review

This Article highlights the central—and under-theorized—role that disclosure plays within trademark law. By loose analogy, the patent disclosure requirement is a cornerstone of patent law, embodying the “patent bargain” where an inventor must disclose their invention in exchange for a twenty-year monopoly. This quid pro quo is believed to stimulate the progress of science and technology, making patent disclosure the very pulse of the patent regime. However, the fundamental importance of disclosure in trademark law remains underexplored. Like patents, trademark law imposes a rigorous bargain—to obtain the enhanced rights granted by federal registration, trademark owners must first make significant disclosures …

Federal Hiring Dysfunction And The Self-Shrinking Skew, Lindsey Barrett

American University Law Review

A half-century of remodeling agency workforces against corporate blueprints has hollowed out the civil service, enervated oversight, and facilitated the rise of tech oligarchy. Progressive commentors have criticized the neoliberal turn and proposed reinvigorating reforms, but they’ve overlooked a foundational obstacle: federal hiring dysfunction. Hiring dysfunction entrenches low-resource, deferential regulatory tactics, makes sharper or more onerous approaches less feasible, and undermines recruitment of technical staff for policy and regulatory functions. Concerns about hiring dysfunction and capacity dampen regulatory ambitions. Finally, hiring dysfunction creates plausible-seeming capacity pretexts to oppose novel or more confrontational tactics. The cumulative effects cement regulatory dismantlement to …

Religious Freedom, Jesuit Mission, And Dei, William M. Treanor, Amelia J. Uelmen

Georgetown Law Faculty Publications and Other Works

The ability of Jesuit educational institutions to pursue a central part of their mission – that of fostering diverse, equitable and inclusive educational environments – is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work …

Copyright Protection Or Media Suppression? The Digital Millennium Copyright Act's Impact On News Media And Journalism, Alenis Olivera

FIU Law Review

When copyright law collides with press freedom, which one survives the takedown? The Digital Millennium Copyright Act (DMCA) was once hailed as a necessary adaptation to copyright protection issues in the digital age. But now, nearly three decades since its incorporation into the Copyright Act, the DMCA has continued to cast a shadow over the journalism industry. The DMCA’s notice-and-takedown system, originally designed to protect copyright owners by allowing for quick removal of infringing content, has become a mechanism that risks suppressing lawful reporting and undermines the First Amendment’s guarantee of a free press. This Comment will explore how the …

Private Equity In Healthcare: The Case For Stricter Regulations, Ryan Scivally

FIU Law Review

Private equity has become an increasingly influential force in American healthcare. Hundreds of billions of dollars have flown into healthcare acquisitions over the last decade, and a growing share of physician practices and health services are coming under investor control. This Comment argues that the current regulatory framework has not kept pace with that expansion. Existing federal tools, primarily antitrust and fraud enforcement, leave most transactions unreviewed because many deals fall below reporting thresholds. At the state level, doctrines such as the corporate practice of medicine are unevenly enforced and often avoided through management services’ organization structures. These structures preserve …

Owning Trading Opportunities, Kevin Douglas

FIU Law Review

Owning Trading Opportunities identifies the doctrines and policy rationales used to protect property rights in corporate opportunities. It then explores adopting these doctrines and rationales to reform the notions of "fairness," "public interest," "investor protection," "market confidence," and "economic efficiency" driving the regulation of insider trading.

This approach yields several benefits. First, it shows that a policy commitment to equal trading opportunities for all investors is the functional equivalent of a commitment to fostering equal access to information for all investors. The U.S. Supreme Court attempted to reject the latter but failed by embracing the former.

Second, corporate opportunity cases …

Forum Selling As A Threat To The Rule Of Law, Brian Iverson

FIU Law Review

Forum shopping has long been a feature of federal litigation, but recent years have brought a more troubling dynamic in which federal courts compete for cases by “forum selling.” Judges engage in forum selling by adopting plaintiff-friendly procedures, reliably issuing plaintiff-leaning decisions, and publicly soliciting certain types of cases. These practices transform localized procedural discretion into a structural risk for the federal judicial system.

This Article makes two novel contributions to the federal forum-selling literature. First, it expands the discussion beyond bankruptcy and patent practice to examine ideological influences. Drawing on empirical scholarship and illustrative judicial profiles, the Article identifies …

The Intersection Of Abuse, Child Welfare, And The Law For Intimate Partner Violence Survivors: Gender Violence As An Antagonistic Social Force, Julio Montanez

Graduate Studies Theses and Dissertations 2026

Intimate partner violence (IPV)—as gender violence—pits children’s civil rights and women’s civil liberties against each other. To explore this phenomenon, the current work features five (5) studies that aim to understand the systemic consequences of IPV and child maltreatment for victims and survivors of both types of abuse.

• Study 1 is a qualitative-deductive study featuring a directed content analysis of news media pertaining to a trial court case on lethal child maltreatment and IPV.
• Study 2 is a qualitative-inductive study featuring a feminist critical discourse analysis of trial court data on lethal child maltreatment and IPV.
• Study 3 is a …

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

Race, Reparative Justice, And Climate Change-Related Migration, Monica Visalam Iyer

FIU Law Review

The question of how to appropriately respond to migration linked to climate change is increasingly being debated in academia, in government and policy circles, and, crucially, in international legal and climate policy forums. These debates often center on data and on understanding the true numbers of people who might migrate in the context of climate change, and how much of this migration can accurately be linked to climate change, or on the security and logistical concerns associated with responding to this “challenge,” or on the appropriate legal box into which people migrating in this context can be shoved. Too often, …

Geographical Indications For Agricultural Products: Inconsistencies And Conflicts In Europe And The Global Arena, Lorenzo Bairati

FIU Law Review

Food systems are regulated by a global and hybrid legal framework. In fact, while supranational and international sources play an increasingly important role, private regulators are also becoming more and more involved alongside traditional public policy-makers. Within this context, Geographical Indications (GIs) serve as the main tool in the European Union and beyond to protect quality agri-food products.

This Article aims to explore these instruments in depth in order to analyze several critical aspects from the perspective of global governance, i.e., the networked, hybrid, and diffuse legal space that develops through the participation, negotiation, and strategic interaction between public and …

Contracting For Innovation In The Global South: Empirical Evidence From Brazil, Pablo Marcello Baquero

FIU Law Review

As innovation cycles accelerate, companies seeking to remain at the forefront of the knowledge economy increasingly partner with sophisticated firms to co-create innovation. These collaborations involving pervasive uncertainty are structured through hybrid contractual arrangements that combine features of market-based independence with those of the close coordination typical of the firm. To date, contracting for innovation has been examined primarily in the context of the Global North. In the United States, the literature has focused on the governance mechanisms that parties employ to continuously define their obligations and mitigate opportunism amid profound uncertainty. In Europe, scholarship on contractual networks or organizational …

The Italian Rice Production: Between Tradition And Globalization, Bianca Gardella Tedeschi

FIU Law Review

The Article examines the Italian rice sector as a case study in how law mediates the tensions between territorial agricultural traditions and the pressures of globalization. Focusing on the rice-producing districts of Piedmont and Lombardy, the Article argues that the resilience of Italian rice production cannot be explained solely by agronomic or economic factors. Rather, it depends on a dense legal and institutional framework that structures water governance, quality control, market organization, and contractual relations across the supply chain.

The Article develops three principal claims. First, it shows that the competitiveness of Italian rice production rests on an integrated model …

The New European Union Regulation On Geographical Indications For Craft And Industrial Products And The Protection Of "Lace Of Cantù": A Work In Progress, Barbara Pozzo

FIU Law Review

Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 has introduced the protection of geographical indications for craft and industrial products. The contribution aims at investigating how the Regulation may have implications in the fashion world. In particular, it will focus on a particular case study undertaken in Northern Italy, concerning the possibility of protecting the “Lace of Cantù” through a geographical indications for craft.

Virtual Harm, Real Consequences: Constitutional Justifications For Criminalizing Ai-Generated Child Pornography, Adam Abdin

FIU Law Review

Advances in artificial intelligence (AI) have enabled the creation of hyper-realistic child sexual abuse images without any real child involved. These AI-generated depictions pose a unique challenge: they replicate the most pernicious form of pornography—child pornography—while potentially being claimed as “speech” immune from regulation. This paper argues that it is both constitutionally permissible and morally imperative to criminalize AI-generated child pornography. This article presents two doctrinal pathways to justify a ban. First, such content can be treated as unprotected speech under existing First Amendment exceptions. Courts have long held that child pornography and obscenity lie outside First Amendment protection, and …

Governing Ai Without Agencies: Self-Regulatory Organizations And The Federal Backstop, Aram A. Gavoor

GW Law Faculty Publications & Other Works

Artificial intelligence is accelerating American innovation and strategic advantage. The governance task is to provide predictable compliance baselines that support scale and competitiveness while remaining workable under executive branch policy, statutory baselines, and the rules that now govern the administrative state. Congress remains slow and factional, and agencies face rising procedural and remedial constraints. Recent Supreme Court doctrine has reduced the administrative state’s interpretive and enforcement leverage. Regulated entities can challenge agency rules when those rules newly impose concrete harm, litigate statutory meaning without Chevron-style mandatory deference to agency statutory interpretations with limited exceptions, and invoke strengthened procedural safeguards in …

Feature Comment: Governance As A “Blocker”: How The Pentagon’S New Ai Strategy Trades Oversight For Speed, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Department of Defense's January 2026 AI Strategy memorandum presents governance and speed as a zero-sum tradeoff, labeling core oversight mechanisms such as ATOs, test and evaluation, and contracting processes as "blockers" to be waived through a newly established Barrier Removal Board. By doing so, the memo converts governance from a baseline into a negotiable exception. It also redefines "Responsible AI" in ways that depart from the Department's prior lifecycle-assurance framework, mandates "any lawful use" contract language that shifts risk management responsibility to the government, and elevates undefined criteria like "model objectivity" to primary procurement standards, without providing contracting officers …

Deploying The “Trade Bazooka”: How The Anti-Coercion Instrument Reshapes Eu Public Procurement, Amanda Lythgoe, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As trade disputes continue to batter the relationship between the U.S. and its partners in the European Union, a new countermeasure by the EU—the Anti-Coercion Instrument (ACI)—has emerged as a serious threat to trade flows, including in public procurement. Although formally framed as a trade-defense mechanism, the ACI is a legal instrument capable of addressing a broad range of economic coercion. Notably, although the ACI is presented as a means of deterrence and de-escalation, the ACI authorizes countermeasures that extend well beyond tariffs, and can severely restrict foreign firms’ access to EU public procurement markets. This article provides an historical …