Digital Commons Network^™

Monarchy, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Falsifying Tradition, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that foundational issue.

Part I surveys the ways in which courts use tradition in different …

The Limits And Promise Of Global Antitrust Law, Anu Bradford, Adam Chilton, Katerina Linos

Public Law and Legal Theory Working Papers

No abstract provided.

The Tom Sawyer Effect: Invisible Work And Labor Market Power, Eric A. Posner

Public Law and Legal Theory Working Papers

No abstract provided.

Yes, The Founders Were Originalists, William Baude

Public Law and Legal Theory Working Papers

Jonathan Gienapp’s Against Constitutional Originalism accuses originalism of a kind of self- defeat, arguing that the Founders weren’t really originalists. But like Jefferson Powell’s sim- ilar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp’s work may only help along a similar shift, this time from original mean- ing to our original law.

Gienapp makes four main claims: that the Founders’ Constitution wasn’t conventional law; that the Founders couldn’t agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we …

Extradition In The Early Republic: International Law And Constitutional Authority, Curtis Bradley

Public Law and Legal Theory Working Papers

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article …

Bargaining In The Shadow Of The Efaa, Samuel Cole

Public Law and Legal Theory Working Papers

No abstract provided.

Yoga Sūtra Book Four And The Yogabindu, Christopher Key Chapple

Monsoon: South Asian Studies Association Journal

Four themes from the fourth pāda of Patañjali’s Yoga Sūtra are examined here: karma (IV:2-13), individuality (IV:16), humility (IV:20-22), and freedom (IV:29-34). Affirmations and variant interpretations of these four are provided from Haribhadra Virahāṅka’s Yogabindu, most likely composed a century or two later.

The Historical Evolution Of Corporate Social Responsibility: A Foreword To The Eli Guidance, Reuven S. Avi-Yonah

Other Publications

This issue includes the “ELI Report on Company Capital and Financial Accounting for Corporate Sustainability” and accompanying studies, including Anne Le Manh, https://doi.org/10.1515/ael-2021-0041, “Accounting Policies and Dividend Limitation: A European Comparison”, and country reports from Germany, Italy, France, Croatia, Japan, and the UK. The focus of the Report is on environmental, social and governance (ESG) considerations, which “concern broad matters pointing to the sustainable and responsible long-term relationship of companies with stakeholders, society and nature … In this context, an important and timely debate is ongoing as to how companies could and should be sustainable and responsible for the benefit …

Measuring The Rapidly Increasing Use Of Artificial Intelligence In Legal Scholarship, Michael Conklin, Christopher Houston

St. Mary's Journal on Legal Malpractice & Ethics

The rapid advancement of artificial intelligence (AI) has had a profound impact on nearly every industry, including legal academia. As AI-driven tools like ChatGPT become more prevalent, they raise critical questions about authorship, academic integrity, and the evolving nature of legal writing. While AI offers promising benefits—such as improved efficiency in research, drafting, and analysis—it also presents ethical dilemmas related to originality, bias, and the potential homogenization of legal discourse.

One of the challenges in assessing AI’s influence on legal scholarship is the difficulty of identifying AI-generated content. Traditional plagiarism-detection methods are often inadequate, as AI does not merely copy …

Mapping The South Dakota Legislature, John Mccullough

South Dakota Law Review

All state legislatures are unique. Each is rooted in a state’s political tradition and culture. A state legislature carries out its constitutional duties at a specific place— in a capital city and usually in a state capitol building. The setting of legislative activity is not simply a backdrop on a political stage, but rather, it is an integral component of a state’s political story. What makes the South Dakota Legislature’s story “one-of-a-kind” is the location at which it carries out its work. This article maps out that location, showing its distinctiveness among all state legislatures and providing a greater context …

The Efficient Default Rule For Sandbagging In Mergers And Acquisitions: A Limited Pro-Sandbagging Default, Alexis Klimaszewski

Connecticut Law Review

In the area of mergers and acquisitions (“M&A”), a buyer “sandbags” a seller when, knowing the seller has breached—intentionally or unintentionally—a representation or warranty prior to closing, the buyer nonetheless closes the sale and subsequently brings a post-closing indemnification claim. Parties to a merger or acquisition can negotiate a pro- or anti-sandbagging provision; however, the recent trend has been rising instances of silence in M&A agreements. Given the modern majority default rule, the result is that most buyers in the United States hold a sandbagging right; however, default rules are ambiguous, uncertain, and inconsistent across jurisdictions. While sandbagging at first …

Sidgwick’S “Move”: A Reply, T. A. Cavanaugh

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Powers That Perpetuate Child Marriage In India, China, And The United States, Ava Kegler

Undergraduate Honors Theses

Child marriage is a crisis that continues to be practiced in many countries around the world. This is not to discredit the progress that organizations like the United Nations Children’s Fund (UNICEF) and Girls Not Brides have made to aid countries in their process of eliminating child marriage. However, the commitment to completing the UN Sustainable Development Goal (SDG) of ending child marriage by 2030 seems less achievable as we enter 2025. The question this thesis considers is why this goal is challenging to reach. While child marriage is prominent in developing nations, caused by high poverty rates, low education, …

Civil Rights Law—One Foot In, One Foot Out: Fourth Circuit Holds Tester’S Informational Injury Obtains Sufficient Standing—Laufer V. Naranda Hotels, Llc, 60 F.4th 156 (4th Cir. 2023), Abigail Walsh

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

The Benefit Analysis In Eu – Cvds On Biodiesel (Indonesia): E Uno Plura, Akhil Raina, Neeraj Rajan Sabitha, Petros C. Mavroidis

Indian Journal of International Economic Law

In the EU – CVDs on Biodiesel (Indonesia) WTO dispute, the legal relevance of certain export levy payments made by producers that ultimately benefited from the alleged subsidy, in the form of grants from the government, was contested.  These export levies were mandated under the same measure that introduced the grants, were paid by the producers who ultimately received the grants and made up the funds from which the grants were ultimately financed. The WTO panel attached no particular importance to these export levy payments in its subsidy analysis and ultimately found that the grants constitute a subsidy. We disagree …

Delays, Disruptions, And Diminished Margins: Reassessing Loss Claims In Indian Construction Law, Gautam Mohanty Mr, Gaurav Rai

National Law School of India Review

Loss of Profit claims by a contractor are premised on the assertion that the contractor has incurred financial losses due to the act of illegal and premature termination of the contract by the employer. Loss of profitability, on the other hand, is a claim made by the contractor of a decrease in the profit percentage in a contract on account of delays and disruptions in the work due to the actions attributable to the employer. Due to the homonymic nature of the terms, several judgments in India confuse one with the other and misunderstand the underlying principles of law applicable …

A Comparative Study On The Originality Of Ai-Generated Artworks: What Can Copyright Laws Learn From Refik Anadol?, Söğüt Atilla

National Law School of India Review

Originality is a fundamental requirement for works to receive copyright protection. However, as the term lacks a universally accepted definition, interpretations of originality vary across jurisdictions. This article first examines key theories underpinning copyright law to justify the necessity of an originality threshold. It then analyses how the United States, the United Kingdom, India, China, and the European Union define and apply this criterion. In the final section, the article argues that, these jurisdictions, when applying their well-established principles and case law consistently, can accommodate findings of originality in AI-generated artworks. The article critiques the misconception shared by some jurisdictions …

Counterclaims In Investor-State Arbitration: A Tale Of Two Cases, Godwin Tan, Justin Tan

National Law School of India Review

This article explores the evolving role of counterclaims in investment treaty arbitration. While arbitral rules commonly permit counterclaims, their success has historically been limited due to challenges such as the scope of the parties’ consent to arbitration and the lack of a relevant investor obligation to ground the counterclaim. However, a discernible increase in counterclaims under the ICSID Convention over the past 15 years suggests that there may be a shift in practice. Against this backdrop, this article carries out a comparative analysis of two recent decisions – Iberdrola v. Guatemala (2020) and Lopez Goyne Family Trust v. Nicaragua (2023) …

The Social Life Of Free Speech: Who Gets To Speak And Express?, Anurag Bhaskar

National Law School of India Review

The interdisciplinary scholarship on free speech, though developed outside the Indian context, underscores the necessity of re-examining free speech not just as an individual right against the State, but as a socially embedded phenomenon, conditioned by historical inequalities and prevailing systems of power. Building on this framework, this article advances an anti-caste perspective on freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. It examines the contours of free speech in a heterogeneous and hierarchically structured society, interrogating how caste hierarchies have shaped the boundaries of acceptable speech, and determining whose speech is heard and whose is …

‘What Can A Comma Do?’: Re-Examining Victorian Criminalisation Of Obscenity Through The Flawed Interlinking Of ‘Decency Or Morality’ Under The Strain Of Modern Liberal Consciousness, Ratika Gaur

National Law School of India Review

This paper argues that the rhetorical nature of India’s post-independence obscenity jurisprudence stems from the interlinking of two distinct (behavioural v. normative) categories into the singular provision of ‘decency or morality’ under Article 19(2). This interlinking emerged amidst the socio-economic and cultural upheavals in Victorian England, wherein moral anxieties around the ‘visibility’ of obscenity reflected a crisis of political obligation within the modern liberal consciousness. Operating through the logic of deterrence, this consciousness criminalized obscenity due to its ideationally incapacity to accommodate liminal expressions—acts that were neither neatly civil, nor outright criminal, even when offensive. In this regard, one substantive …

That’S Using Your Head! Head Shaking, Nodding, And Smiling As Evidentiary Admissions, Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Siren Song Of Territoriality, Robin J. Effron, Alan M. Trammell

Scholarly Articles

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme …

Can Ai Hold Office Hours?, Lisa Larrimore Ouellette, Amy R. Motomura, Jason Reinecke, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Rapid improvements in AI tools offer transformative opportunities in legal education, including the possibility of students using AI tools to answer questions that students might otherwise ask during office hours. But a critical challenge is the accuracy of these tools’ responses. Both general-purpose and law-specific AI models have been shown to “hallucinate” incorrect responses to a range of legal questions. Here, we evaluate the current capabilities of AI models when given the more constrained task of answering questions about a specific legal text. We provided three AI tools—OpenAI’s GPT-4o, Anthropic’s Claude 3.5 Sonnet, and Google’s NotebookLM—with the text of Masur …

The Limits Of Tradition: Counterman, True Threats, And The Categorical Approach To Free Speech, Brett Zicari

Catholic University Journal of Law and Technology

Tradition is in vogue.[1] Across a wide variety of areas, the Supreme Court has embraced “history and tradition” as its primary methodology for determining the meaning of constitutional provisions.[2] Recently the Court has even suggested that a restriction on the use of names in trademarks could rest entirely on its traditional status,[3] but nowhere has this move toward tradition been as robust or longstanding as in the speech context. Since the 1940s, the Supreme Court has invoked tradition to defend content-based or categorical restrictions, and more recently, it has purported to rely exclusively on tradition.[4] The …

At The Hart Of Immigration Reform: How Dhs’S New Biometric Database Will Infringe On The Privacy Rights Of U.S. Citizens, Permanent Residents, And Foreign Nationals, Calypso Moschochoritis

Catholic University Journal of Law and Technology

Immigration is a regular feature of American life; President Obama once described the U.S. as “a nation of immigrants.” Even as the host of more immigrants than any other nation, the American public has historically found immigration contentious. Since Congress has failed to agree on comprehensive immigration reform, this responsibility has moved to the executive and judicial branches of government. In 2016, the Department of Homeland Security (DHS) began working on the Homeland Advanced Recognition Technology (HART) Program, a new biometric information management system, to replace IDENT (Automated Biometric Identification System), DHS’s current biometrics database. HART will join other initiatives …

Front Matter

Canadian Journal of Family Law

No abstract provided.

Private Wrongs, Public Impact: The Case For A Tort Of Family Violence, Pahul Gupta

Canadian Journal of Family Law

This research paper investigates the adequacy of current civil actions available against a particular form of family violence: intimate partner violence (“IPV”). The paper identifies the torts which are most commonly applicable in the IPV context and argues that they fail to capture the cumulative harm associated with such conduct. It identifies the shortcomings of such causes of actions and analyzes the multifaceted factors contributing to the limitations and challenges IPV victims face when pursuing such claims.

The paper provides a brief background on the historical and legal context of family violence before moving on to identifying the various causes …

A Last Full Measure: Defining Insurrection In The Fourteenth Amendment, Caleb Wootan

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.