Digital Commons Network^™

Code And Consequences: How Fraud Detection Algorithms Criminalize Welfare, Michele E. Gilman

All Faculty Scholarship

This article investigates the growing use of automated fraud detection systems in public benefits programs, focusing on how these technologies have intensified the surveillance and criminalization of low-income individuals. Across the globe, government agencies deploying fraud detection algorithms have wrongfully accused thousands of people of committing fraud, with devastating consequences, including bankruptcy, job loss, and psychological trauma. These algorithmic systems operate as opaque “black boxes,” fueled by historical biases against the poor and largely unaccountable to the individuals they affect. Meanwhile, the private vendors that develop the algorithms reap massive profits from unfulfilled promises of efficiency and cost savings.

The …

Gold & Blue Law Edition, Spring 2026, St. Mary's University - San Antonio, Texas

Gold & Blue Law Edition

This is the Spring 2026 edition of Gold & Blue Law Edition which is St. Mary's University's official School of Law publication.

Revisiting The Missed Pigouvian Opportunity Of The First Industrial Revolution: A Carbon-Based Pigouvian Tax On Ai, Haozheng Jiang

SLU Law Journal Online

As artificial intelligence (AI) reshapes the economy with comparative speed and scope as during the First Industrial Revolution, policymakers face a familiar dilemma: how to preserve technological progress while addressing its negative externalities. This article proposes a uniform, carbon-based Pigouvian tax on AI as a practicable and forward-looking solution to correct one of AI’s most readily measurable negative externalities without stifling innovation. Drawing on lessons from existing carbon-pricing systems, this article contends that such a tax should be designed with flexibility and transparency to promote both effectiveness and political feasibility. Properly structured, the tax would not deter AI development but …

The Judiciary's Arbitrary And Capricious Problem, Jack D. Malich

West Virginia Law Review

The Supreme Court has not been shy in its efforts to change, and in some cases, overturn long-standing administrative law precedent. Yet in one area, arbitrary and capricious review under Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Insurance Co., the Court has ostensibly not acted to modify any part of the doctrine. Recently, however, the federal judiciary has increasingly used arbitrary and capricious review to invalidate major agency actions over what seem to be somewhat minor procedural flaws. The increased stringency of such review has led to increasing conflict between the executive and judicial branch. Two Supreme Court decisions …

Consent Absent Consensus: A Principles-Based Framework For Institutional Sexual Consent Policies, Tammi Walker

West Virginia Law Review

Title IX requires educational institutions to address sexual misconduct but provides no clear standard for defining consent. In the absence of federal guidance, colleges and universities operate in a regulatory vacuum, producing inconsistent definitions, legal uncertainty, and contested understandings of what consent requires. Without a structured framework, institutions struggle to balance survivor protection, due process, and practical implementation. This Article introduces a principles-based framework that supports clearer, more coherent consent policies. It identifies three interdependent elements of valid sexual consent: (1) Respect for Choices and Autonomy, which requires voluntary agreement free from coercion or pressure; (2) Informed Expectations and Transparency, …

Drawing Lines In The Substance: Questioning The Inconsistent Application Of West Virginia's Recidivist Statute In Cases Involving Controlled Substance Violations, Patrick Hassen

West Virginia Law Review

For decades, West Virginia’s recidivist statute required courts to sentence repeat felony offenders to life in prison even if their offenses were not violent. Over the years, the statute mandated life sentences for triggering offenses as minor as writing a bad check or failing to register a new phone number with the police. Unsurprisingly, the statute has come under its fair share of constitutional attack for violating the state Constitution’s proportionality principle. In 1981 the Supreme Court of Appeals of West Virginia held the state’s proportionality principle requires a strict interpretation of the recidivist statute in favor of the defendant. …

A Damning Doctrine: State-Created Danger, Sierra Dotson

West Virginia Law Review

United States Supreme Court should take to promote uniformity in the correct interpretation of the doctrine and in applying the state-created danger exception.

Artificial Intelligence And Machine Learning Improving The Livelihood Of Individuals With Disabilities In Various Capacities, Daveon Lilly

West Virginia Law Review

Artificial Intelligence (“AI”) and Machine Learning (“ML”) are swiftly reshaping accessibility for individuals with disabilities, offering fresh opportunities for inclusion in education, the workplace, and daily life. This Note explores the integration of AI and ML into assistive technologies and discusses how this integration bolsters access and independence for people with various disabilities. It also examines the legal frameworks, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”), that govern the implementation of these technologies and address challenges such as algorithmic bias, data privacy, and the digital divide. While AI and ML have made …

Training New Lawyers With And For Generative Ai: A Semester-Long Experiment Scaling Clinical Friction In The Doctrinal Classroom, Frank W. Volk

West Virginia Law Review

No abstract provided.

The Legal Framework For Direct Ocean Carbon Capture And Storage (Volume 1: International Law), Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This paper focuses on the marine carbon dioxide removal (mCDR) approach of direct ocean carbon capture and storage (DOCCS), which aims to remove some of the carbon currently stored in the ocean and thereby enable it to uptake additional carbon dioxide from the atmosphere. DOCCS is still undergoing research, but early studies suggest it could have significant carbon dioxide removal potential. However, DOCCS could also present environmental and other risks, including from the construction of new facilities, the intake and processing of water, and the handling and storage of carbon dioxide. Careful siting, design, and operation of DOCCS systems is …

Ageless Law: The Case For (Some) Age Discrimination, Nina A. Kohn

North Carolina Law Review

No abstract provided.

Racing To Safety: Tax Policy For Ai Safety-By-Design, Mirit Eyal, Yonathan Arbel

Articles

The White House recently announced its vision of artificial intelligence (AI) policy: AI development is a race and America must win it. To that end, a new America's AI Action Plan directs federal agencies and states to remove regulatory barriers to AI development and accelerate innovation. This approach leaves limited room for regulatory measures that would address the safety risks of powerful AI systems: their behavior in novel domains remains unpredictable, their decision-making opaqueness, and their alignment with human values is uncertain. While experts warn of large-scale accidents, policymakers find themselves in a bind: Regulate AI and cede ground to …

Private Coverage, Public Risk: The Role Of Cyber Insurance In National Security Governance, Deborah L. Johnson

Faculty Publications

This Article explores the growing yet underexamined role of the commercial cyber insurance market in shaping the United States' approach to cybersecurity readiness. It argues that, as cyber threats against U.S. critical infrastructure and essential services increase, commercial cyber insurance has quietly come to function as a de facto governance tool in national cybersecurity. In hospitals, water and energy systems, and other public-facing sectors, policy language, underwriting questionnaires, and post-breach claims practices help define what counts as "reasonable" security, influence how organizations plan for and respond to incidents, and affect the pace and scope of recovery after an attack. Yet …

Corporate Fiduciary Duties And The Climate And Biodiversity Crisis, Eric W. Orts, Sandra G. Schafhäutle

Michigan Journal of Environmental & Administrative Law

This Article argues that addressing one of the most urgent environmental challenges facing humanity today—the global climate and biodiversity crisis—calls for a transformation at the heart of corporate law: its fiduciary duties. After demonstrating how current corporate fiduciary duties are implicated in this crisis, we argue for reform of fiduciary duties operating at two levels: those governing directors and officers of business corporations, and those governing institutional investors and asset managers. We then distinguish between two general kinds of corporate fiduciary duties: permissive and mandatory. We contend that corporate law should accommodate a more expansive understanding of fiduciary duties by …

Expressive And Acquisitive Norms Of Property In The Municipal And Private Contexts: Guerrilla Gardening And Property Reform, Anna Benham

Michigan Journal of Environmental & Administrative Law

There exists a type of expressive property outlaw—the guerrilla gardener. Guerrilla gardening is the practice of gardening without the legal right to do so. The practice of guerrilla gardening can sometimes take on rooted permanence, and as a result, progressively higher stakes. Guerrilla gardeners can operate over years, planting plots of greenery in areas where their hard work can be removed, quite literally, overnight. Many guerrilla gardeners operate with the implicit consent of their neighbors—consent that can be revoked at any time. However, when one bends away from the light insurrections of nonoffensive trespass and examines the other end of …

Four Decades, No Progress: Time For A Columbia River Basin Compact, Liesl L. Bogaard

Michigan Journal of Environmental & Administrative Law

Since the Power Act’s passage in 1980, the government entities who develop and implement energy policy in the Pacific Northwest have operated under a congressional mandate to protect fish and wildlife in the Columbia River Basin. However, nearly half a century later, the number of wild salmon and steelhead returning to their native spawning grounds is still in decline, largely due to dam operations in the Columbia and its tributaries. This Note examines the history of hydroelectric power generation in the Columbia River Basin and its impact on fish populations, drawing parallels between the environmental crisis in the Columbia River …

A Guide To The Best Reading Of Environmental Law: Presumptions For Stability In Statutory Interpretation, Sanne H. Knudsen

Michigan Journal of Environmental & Administrative Law

Administrative law is in flux and its doctrines flexible. Recent doctrinal shifts—like the ousting of Chevron and the introduction of the major questions doctrine—raise significant questions about how courts will determine the best reading of statutes and carve out a role for agency expertise in statutory interpretation. For environmental law, a field that relies heavily on federal agencies for implementation, the flux and flexibility of administrative law presents challenges. But they also present opportunities.

On the one hand, the recent changes to administrative law pose a destabilizing and deregulatory risk for environmental law unless courts develop a consistent methodology for …

Armed Conflict: Addressing Violations Against Children's Human Rights, Noelia Torres Guillen

Posters - 2026

• Research question: How has armed conflict violated children's human rights, and how have international legal frameworks been effective in addressing these violations?

• The CRC sets the standard international definition, which defines a child as every human being below the age of eighteen years

• There are six grave violations: Killing and maiming of children, the recruitment or use of children as soldiers, sexual violence, abduction, attacks against schools and hospitals, and denial of humanitarian access for children.

• Argument (thesis): Although there are several legal instruments implemented to protect children's human rights during armed conflict, children are still …

Antitrust And Economic Liberty, Doha Mekki

Center for Law and the Economy

Over the last few years, antitrust plaintiffs have won important victories in cases against digital platforms. They’ve won important cases involving real estate associations, elite private colleges, sports leagues, pharmaceutical companies, pork processors, and health insurers. In some cases, they have secured record-breaking jury verdicts and redress for harmed individuals.

The U.S. Department of Justice’s Antitrust Division has been active too. Last year, a federal court held that Google illegally maintained monopolies in general internet search and related search advertising markets. That case is about access to the information we see and use to make decisions about how we want …

Data Siloing As A Solution To Google’S Illegal Monopoly, Derek Polson, Victoria Wood

Brigham Young University Prelaw Review

While the court-issued remedies prescribed in United States of America v. Google LLC (2024) aim to curb Google’s use of anticompetitive practices, they fail to address the structural mechanisms that sustain its monopoly. Antitrust remedies in the U.S. traditionally seek to (1) end anticompetitive practices and (2) reopen competitive market conditions. The court’s approach in this case does neither. By leaving intact Google’s ability to leverage significant barriers to entry and its unparalleled big data advantage, the court’s remedies preserve the very conditions that entrench Google’s dominance in the digital advertising and search engine markets. This note argues that data …

Reconsidering The Take It Down Act, Cate Thorpe

Brigham Young University Prelaw Review

In the past decade, there has been an increase in digital forgeries leading to the phenomena many have called “revenge porn.” This form of Nonconsensual Intimate Imagery (NCII) has been facilitated by AI-models that allow users to create false images or videos of someone’s likeness, often referred to as deepfakes. In an attempt to combat the dissemination of such forged NCIIs, Congress enacted the TAKE IT DOWN Act. The Act institutes a notice-and-removal procedure for victims to request the removal of  NCIIs depicting their likeness on covered platforms. While the TAKE IT DOWN Act sufficiently addresses some concerns, certain aspects …

Mobility Without Retention: Reforming The Compact Of Free Association To Address Human Capital Flight, Ellery Miller, Porter O'Reilly

Brigham Young University Prelaw Review

In the aftermath of United States nuclear testing in the Republic of the Marshall Islands (RMI), which rendered several atolls uninhabitable, the country now confronts a different threat: sustained human capital flight. To compensate the RMI for nuclear damages, the United States signed into law the Compact of Free Association (COFA), a treaty structured around three core commitments: (1) defense and security, (2) economic assistance, and (3) unrestricted migration rights. Under COFA, Marshallese citizens may live and work in the United States without a visa, which has resulted in large-scale outmigration of the working-age and educated population. This Note argues …

“Loophole Of The Century”: Routine Use And The Privacy Act Of 1974, Joslynn Jensen

Brigham Young University Prelaw Review

This Note examines structural weaknesses in the Privacy Act of 1974 and argues that the statute no longer provides meaningful safeguards for personal information held by federal agencies. Enacted in the aftermath of the Watergate scandal, the Act was designed to ensure transparency, accountability, and individual control over government recordkeeping systems. However, two core features—the routine-use exception and the Act’s narrow remedial structure—have undermined these protections. The routine-use provision permits agencies to disclose personal records without individualized consent so long as the disclosure is deemed “compatible” with the purpose of collection and published in the Federal Register, a form of …

Regulating Ai, Jacob Leavitt

Brigham Young University Prelaw Review

Artificial intelligence, a new phenomena embedding itself in every aspect of public life, is advancing at unprecedented rates with potentially catastrophic consequences. While fragmented and reaction regulation frameworks are currently in place, based primarily on tort cases, this paper calls for a hybrid regulatory solution that combines federal administrative law and streamlined international policy. This paper assesses proposed regulatory solutions - tort law, an industry-drafted “AI Constitution,” a Communications Decency Act-style immunity framework, a domestic federal agency, and an international regulatory body. Based on these frameworks, the authors have developed five criteria for an effective solution - expertise, enforceability, obligation, …

How Many Supreme Court Justices Can Stand On The Point Of A Needle? Originalist Scholarship, Political Neutrality, And Other Constitutional Nonsense, Stephen M. Feldman

Washington and Lee Journal of Civil Rights and Social Justice

In the 1935 article, "Transcendental Nonsense and the Functional Approach," Felix Cohen compared formalist legal reasoning, as practiced by traditional legal scholars and Lochner-era Supreme Court justices, to the philosophical musings of scholastic theologians. Unconnected to empirical reality, formalist legal reasoning was as nonsensical as a disquisition on “‘[h]ow many angels can stand on the point of a needle?’” Nowadays, originalist scholars are similarly engaged in nonsense. These scholars defend, refine, and practice originalist methods of constitutional interpretation as if the Supreme Court justices truly decided cases in accordance with the theory. Regardless, the justices—even the avowed originalists—do not consistently …

To Compete Or Noncompete: Lessons On The Impact Of Unenforceable Noncompete Agreements In The Entertainment Industry, Guy Mannick

Washington and Lee Journal of Civil Rights and Social Justice

Economic and legal literature has increasingly focused on how the American legal system fails workers. One way it does so is through employee noncompetition agreements (“NCA” or “noncompete”) that limit a worker’s ability to join another company, often for better compensation and/or more responsibility. Some states enforce NCAs if they are reasonable in scope, geography, and duration; others either prohibit their application to certain types of workers or (as in California) outright prohibit them in most circumstances. More narrowly, new empirical literature about the behavioral effects of unenforceable noncompete agreements raises new questions about the behavioral impact on workers.

This …

Reel It In: Untangling The Circuit Split On The Constitutionality Of Geofence Warrants Under The Fourth Amendment, Kate P. Risser

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines geofence warrants and their ongoing threat to constitutionally protected rights such as privacy, speech, and assembly. Part I will provide background information on geofence warrants and examine the prominent justifications for the use of the warrants. Part II will examine how law enforcement’s use of geofence warrants threatens citizens’ constitutionally protected fundamental rights like privacy and reproductive rights. Specifically, Part II addresses how geofence warrants disproportionately target and affect women, people of color, and low-income individuals. Part III will detail the history of the Fourth Amendment tracing its roots to before the Founding Era then exploring applicable …

The Pennsylvania Bar Association Quarterly: A 10-Year History Volumes 87-96 (2016-2025), Joel Fishman

Law Faculty Publications

This article is the second supplement to my previous two articles covering the history of The Pennsylvania Bar Association Quarterly.² For the period of this article, Robert E. Rains, Professor Emeritus, Penn State Dickinson Law, has been the editor, replacing Professor Louis Del Duca, who had served as editor for an amazing 47 years. The January 2016 issue appropriately began with two articles in homage to Prof. Del Duca.³

Salmonella In Poultry: Tackling An Age-Old Issue In An Evolving Era Of Agency Scrutiny, Samantha Girschick

Georgia State University Law Review

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo marks the end of Chevron deference and fundamentally reshapes the administrative law landscape. In its wake, agencies must now defend regulatory action without the benefit of the judiciary’s longstanding presumption in favor of that agency’s statutory interpretations. Against this backdrop, the Food Safety and Inspection Service (FSIS) attempted to classify certain strains and quantities of Salmonella as adulterants under the Poultry Products Inspection Act (PPIA)—an interpretation that marked a sharp departure from decades of prior agency position. Although the proposed rule was withdrawn before finalization by the Trump Administration, unresolved …

Securing Safe Transitions: A Policy Argument For Sb 434’S Strengthened Eviction Safeguards, Eric Brown

University of the Pacific Law Review

No abstract provided.