Digital Commons Network^™

Access To Justice In Indian Country: Empowering Pro Se Criminal Defendants Through Holistic Defense And Resource Creation, Ilse Turner, Johanna Farmer

South Dakota Law Review

The question of the right to counsel for indigent criminal defendants has consumed various courts and academic journals for decades. Part of this question has revolved around the rights of indigent defendants being prosecuted in tribal courts. There has been scholarly attention devoted to the study of the rights of indigent defendants in tribal courts and the impacts of case law and congressional acts on these rights. This Article seeks to expand the scholarly works around indigent defendants in tribal courts and provide tangible solutions tribes can begin to execute without an act of Congress. This Article will discuss the …

Increasing Access To Justice Through The Use Of Indigenous Restorative Justice And Trauma Informed Practices, Carrie E. Garrow, Danielle J. Mayberry, Micaelee Horn

South Dakota Law Review

Tribal judiciaries are paramount to tribal sovereignty and accessed by court users for many purposes. Access to justice ensures that everyone should be able to understand and assert their rights in a fair tribal justice system. This can be a challenge for rural areas, but even more so in Indian Country due to the complex web of factors such as legal and jurisdictional complexities, the colonization of Indian Nations by federal and state governments, and resource restraints. Due to these barriers and as an effort to serve their communities, tribal justice systems develop mechanisms that are solution based and at …

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 …

Memory Warriors, Pluralists, And Abnegators In Constitutional Interpretation: An Essay On Jack Balkin's Pluralist Originalism In Memory And Authority, Jed Handelsman Shugerman, Zachary Shugerman Handelsman

Faculty Scholarship

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.”

Balkin appropriately connects the memory wars in American constitutional law back to Eastern

European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. …

Ticking Toward Reform: Rethinking The Material Difference Exception In The Luxury Watch Resale Market And Beyond, Mallory K. Hogan

American University Law Review

The rapid growth of the luxury resale market has heightened tension between trademark holders and secondary-market sellers. Courts are increasingly left to apply the material difference exception to first sale doctrine defenses, to find trademark infringement when resold goods differ from the original product, even in de minimis ways. Originally designed to protect consumers from confusion where post-sale modifications affected product quality or safety, the exception has evolved into a broad enforcement tool that luxury brands leverage to challenge resellers over minor or cosmetic alterations. In the luxury watch and accessories markets in particular, courts have deemed even minimal differences …

The Leasehold World, Jeffrey Manns

American University Law Review

The ideal of American fee simple property rests on a popular misconception. Many Americans often think of fee simple property in terms of absolute ownership. In reality, however, fee simple title has many similar features of a “public” leasehold in practice, which has significant implications for understanding the relationship of private property “owners” to the state. The American state, at all levels, effectively serves as a landlord over private property “owners,” mirroring the traditional role of the king in feudal England.

The American Revolution is often framed as a sea change in property rights and individual liberty. But efforts to …

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 …

Tyranny Of A Feather: Asymmetry In Civil Burdens Of Proof, Thomas O. Main

American University Law Review

Civil litigation suffers from a paradox that is at once self-evident, unfair, and overlooked: the trial process promises equality between plaintiffs and defendants under the preponderance-of-the-evidence standard, even as the pretrial process is skewed dramatically in defendants’ favor. At trial a plaintiff needs only “50% plus a feather” to tip the scales and prevail, reflecting a commitment to equal treatment of the parties. Pretrial, however, the playing field tilts steeply: plaintiffs alone must navigate a procedural gauntlet of motions that impose pleading and production burdens for which defendants face no equivalent. This entrenched asymmetry in pretrial practice has become so …

The Painted Ones’ Fine Line: Batok As A Protectable Form Of Traditional Knowledge Under Trade Secret Jurisprudence, Kathleen M. Dinoso

American University Law Review

For centuries, the ancestral tattooing practice of batok has served not as mere ornamentation but as a visual archive of Indigenous Filipinos’ history and identity. In 2021, a digital creator invited the public to learn batok online for merely fifteen dollars. Soon after, many discovered that the renown instructor, Apo Whang-Od, may not have agreed to take part. The resulting discourse exposed a broader issue: Indigenous customs and creations become increasingly vulnerable to misappropriation and improper commodification as they enter global markets and multimedia platforms. Though this event occurred abroad, it highlights how U.S. law is poorly designed to protect …

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

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 …

Silenced By Fear: Undocumented Immigrant Victims Of Sexual Assault, Adriana Isabel Herrera

FIU Law Review

Imagine being sexually assaulted and then having to choose between justice or deportation. In today’s climate of heightened immigration enforcement, many undocumented immigrant victims of sexual assault understandably remain silent. After all, who would risk everything just to report a crime that might get them deported? The fear of being separated from their families, ripped from the lives they have built, and sent back to dangerous conditions in their home countries prevents these victims from coming forward and seeking justice. Additionally, the current protections available to them are flawed and insufficient—primarily due to the U visa cap and prolonged processing …

No Justice Without Transparency: The Case For A Broad Presumption Of Public Access To Court Documents, Taylor Quimby

FIU Law Review

This Comment argues that a broad presumption of public access to court  documents is essential to preserving the legitimacy and constitutional values  of the American legal system. Although the principle of public access is  rooted in common law and constitutional tradition, individual states differ in  how they approach transparency in the context of court documents. These  jurisdictional inconsistencies continue to gain significance, as the digital age  has completely transformed the way people consume information. The  increasing digitization of court records has heightened the need for consistent  and constitutionally grounded standards that preserve transparency while  adequately protecting legitimate privacy interests. Florida’s …

2025 Report To The Editor-In-Chief, Thomas E. Baker

FIU Law Review

No abstract provided.

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.

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.

The Making Of Egyptian Cotton: An Alternative Narrative Between Empire And Global Capital, Dina I. Waked

FIU Law Review

Egyptian cotton has become a celebrated brand. Referring to cotton as “Egyptian” signals a certain quality, luxury, and durability. Egyptian cotton has, thus, become its own trademark, a signifier of value, and a symbol of national heritage. This image is carefully curated. It is now protected under a licensing scheme of branding and marketing that assures that fraudulently claimed “Egyptian cotton” does not benefit from the added value this geographic location ascribes to it. The Egyptian Cotton Association was thus created 2005 to license and accredit the brand. Part of the curation of the brand image is a historical narrative …

Uncovering The Keystone: Case Study Of The Ubs Art Collection Gift, Loan And Contemporary Voices Exhibition At Moma In 2005 - Twenty Years Later, Maria Glikman Yamarakov

MA Theses

This research aims to reconstruct foundational history of the Case, based on the publicly available sources. Using the established factual background to test the significance of each of the three major assumptions, referred traditionally as motivation behind the studied Case undertaking. Through critical analysis this Thesis targets to uncover the keystone of this Case and use it as the background to introduce the governance Duty of Stewardship concept in the corporate collection context. Assuming the introduced concept sustains initial analysis, assess its potential value for further strategic development of the corporate collections of the contemporary art.

Buying Blind: Corruption Risk And The Erosion Of Oversight In Federal Ai Procurement, Jessica Tillipman

GW Law Faculty Publications & Other Works

The United States is accelerating toward a corruption crisis of its own making. In its race to rapidly acquire artificial intelligence (AI), current policy risks undermining longstanding procurement integrity safeguards. This article examines how AI increases traditional corruption risks and introduces new vulnerabilities that current oversight mechanisms are ill-equipped to address.

Recent federal AI policies have accelerated adoption while simultaneously narrowing regulatory oversight, effectively leaving “regulation by contract” as the primary—and profoundly inadequate—mechanism for embedding safeguards. The consequence of these policies is that the government is “buying blind,” acquiring AI technologies without adequate transparency, audit rights, or testing requirements. These …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

Taking Legal Pluralism Seriously: Federalism, Diversity Jurisdiction, And The Erie Doctrine, Paul S. Berman, Emma Bjeldanes

GW Law Faculty Publications & Other Works

The U.S. Supreme Court’s watershed decision in Erie Railroad Co. v. Tompkins is sometimes read to require federal judges hearing claims based on federal diversity jurisdiction to apply state law, essentially as if the case were being decided in a state court. The doctrine therefore appears to create a categorical rule disempowering federal courts from ever departing from state law, despite the Constitution’s grant of federal jurisdiction. However, as the Court’s 2026 Erie case, Berk v. Choy, makes clear, sometimes the Erie analysis is used to empower federal courts to override clear state policy choices embodied in state law simply …

Erie And The Constitution's Constraints On General Law, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

The Constitution of 1787 was the instrument by which the people of the States made a partial and conditional transfer of sovereign authority to a new federal government. To preserve the States’ residual sovereignty, the Constitution established a system of conditional federal supremacy. Specifically, it made the federal government’s ability to displace of state law contingent on compliance with specific structural and procedural safeguards. The Supremacy Clause identifies only three sources of “the supreme Law of the Land”—the Constitution, laws enacted pursuant to it, and treaties made under its authority. For each of these sources of law, the Constitution specifies …

Relevance Between Strict Liability Theory And Banking Crimes In The Transfer Of Customer Funds: Negligence And Intent, Astrid Athina Indradewi, Evi Kongres, Ananda Chrisna D. Panjaitan, Evelyn Hutami Gunawarman

Research Collection Yong Pung How School Of Law

This article discusses the relevance of the Strict Liability theory to banking crimes in the transfer of customer funds involving elements of negligence as well as intent committed by bank managers. Strict liability places responsibility on the perpetrator without the need to prove fault, but rather by establishing a causal relationship between the act and the harm. In the context of civil law, Articles 1365 and 1367 of the Indonesian Civil Code recognize a form of liability resembling this concept through the mechanism of vicarious liability, whereby the bank as employer may be held liable for the unlawful acts of …

Dollar Challenger? Cbdcs, Complexities, And Monetary Hegemony, Heng Wang

Research Collection Yong Pung How School Of Law

Digitalization is transforming the architecture of the international monetary system, reshaping how currencies function and financial infrastructures evolve. Among the significant developments are central bank digital currencies (CBDCs)—new digital forms of national currencies. While CBDCs promise benefits such as efficiency, they also generate relational, technological, legal, and governance complexities that would profoundly affect the global financial landscape. Against this backdrop, a compelling question arises: will CBDCs, particularly cross-border CBDCs, challenge U.S. dollar dominance?

To address this, this Article adopts a forward-looking approach to examine three interrelated crucial questions: what makes CBDCs complex? What governance complexity is likely to arise? Will …

‘Salami Slicing’ And Issue Estoppel: Foreign Decisions On The Governing Law, Adeline Chong

Research Collection Yong Pung How School Of Law

Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English court, but decisions in other jurisdictions show that this question is increasingly being raised in litigation. Is there identity of issue if the two courts apply different choice of law rules? The answer turns on whether a broad or narrow framing of the issue is adopted. It is suggested that, absent an issue which is subject to forum international public policy, forum overriding mandatory rules or which is one that the forum court retains the prerogative to …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Integrating Human Rights Into State And Federal Court Litigation, Lauren E. Bartlett

All Faculty Scholarship

Human rights have never been more important in the United States as they are today. After more than 10 years of dormancy, the seminal work that guides public interest attorneys in incorporating human rights work has been finally updated. The Human Rights in the U.S. Handbook for Public Interest Attorneys is a handbook that provides practical direction to public interest attorneys, including clinical law teachers, legal aid attorneys, public defenders, and others, on how to use human rights in their everyday work. The Handbook invaluably advises attorneys on best practices for using human rights arguments before U.S. state and federal …

The Evolution Of School Accountability In Virginia: Research, Early Results, And Implications For Policy And Practice, David Naff, William L. Parker, Meleah Ellison, Amy Bollt, Andrea Herndon, Paula Muente Mizushima, T'Airra Belcher, Lauren Grob, Lindsay Duncan, Kelly Denny, Emily Leavitt, Gyun Min Jung, Theresa Thompson, Sandra Rucker, Meredith Collier, Jamelle Simmons, Samantha Hope

MERC Publications

This MERC research and policy review focuses on the School Performance and Support Framework (SPSF), Virginia's school accountability system. It synthesizes relevant research literature, student outcome data, and information about accountability systems in other states to provide context, projections, and potential next steps for the SPSF. It concludes with implications and recommendations for state policymakers and education leaders, school boards and division leaders, and school leaders and educators.

Standard Textualism, James A. Macleod

Articles

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Faculty Scholarship

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …