Digital Commons Network^™

Our Clients’ Rights On Mute: Virtual Court, Due Process, And Judicial Discretion, Beena I. Ahmad, Julia Elhai

City University of New York Law Review

The use of videoconferencing as a substitute for in-person appearances began in immigration proceedings in the mid-1990s. During the height of the COVID-19 pandemic, its use expanded significantly in the criminal and civil contexts, when both state and federal courts invested heavily in the technology needed to conduct proceedings remotely. As we have exited the pandemic, courts have eagerly embraced virtual proceedings to reduce their overburdened dockets. Drawing from our experiences in federal and state court, we argue that judges should not be granted discretion to proceed by videoconferencing.

We posit that there is too great a danger that the …

The Architecture Of U.S. Fascism: Part Ii, Nina Farnia

City University of New York Law Review

In Part I of this series, I argued that the United States has always already been proto-fascist, but that today it is undergoing a transition into formal, de jure fascism. This transition is the result of a change in the class nature of the state itself.

In Part II, I focus on the legal architecture of fascism. I expose rule-of-law liberalism as having paved U.S. fascism’s path. I note the pernicious role of the law in class wars, race wars, gender wars, and global wars, with particular attention on the making of a total state. I then challenge the notion …

Holding The Line On Academic Freedom In Law School Clinics, Ty Alper, Praveen Kosuri, Beth Lyon, Alicia E. Plerhoples, Laura Riley, Robin Walker Sterling

Georgetown Law Faculty Publications and Other Works

Since the emergence of modern clinical legal education, law school clinics have periodically faced political interference in their selection of clients and cases, interference that threatens clinics’ essential dual missions of training practice-ready lawyers and providing legal services to marginalized clients who would otherwise lack representation. While such pressure is not new, contemporary threats differ in scale and institutional form. Today, funding, oversight, and enforcement mechanisms are weaponized in an attempt to discipline universities, heightening institutional anxiety and prompting some universities to contemplate preemptive constraints on clinic autonomy in the name of risk management and reputational protection. This shift to …

A Trusteeship Theory Of Pro Bono: Versions And Perversions, David Luban

Georgetown Law Faculty Publications and Other Works

This chapter develops a trusteeship justification of pro bono, arguing that lawyers, as trustees of a public legal system created through democratic self-authorship, have a moral obligation to help address the persistent justice gap affecting persons of limited means. It evaluates multiple forms of pro bono — including voluntary, mandatory, low bono, and state-compelled service — evaluating how well each aligns with the trusteeship model. The chapter contrasts the trusteeship theory with, and criticizes, two alternative justifications for pro bono: presumed lawyer consent rooted in professional tradition and a quid pro quo based on state-authorized privileges. It concludes by distinguishing …

Valuing Future Lives, Daniel J. Hemel, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Federal regulation often involves a tradeoff between monetary costs in the present and life-saving benefits in the future. A central question in regulatory cost-benefit analysis is how to assign a present dollar value to future lives so that future lives and present dollars can be compared. For regulations that are projected to prevent deaths years or decades down the road, agencies make two key analytical moves. First, they adjust the value of a statistical life upward to reflect the fact that society’s willingness to pay to save lives will rise as people become wealthier in the future. Second, they discount …

Leaning Into Absence: Lessons From Kony, Mark A. Drumbl

Scholarly Articles

This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional …

A Long, Deep, And Unbreakable Friendship, Henry Ramer

Touro Law Review

No abstract provided.

Reflections On An Exemplary Life: Professor Dan Subotnik, Eva E. Subotnik

Touro Law Review

No abstract provided.

If I Only Had The Words (To Tell You): Billy Joel Lyrics In Legal And Medical Scholarship, Seuli Bose Brill, Christian H. Brill

Touro Law Review

Law and medicine are often considered to be among the least accessible professions, partly because of the heavy use of non colloquial jargon. This article examines more than 150 instances in which Billy Joel’s lyrics have been used to improve the accessibility of legal and medical scholarship. Legal and medical professionals have used the words of the “Piano Man” to discuss a variety of topics—everything from civil procedure to property rights and the COVID-19 pandemic to colorectal surgery. Nontraditional communications techniques of this type do not just contribute to the body of legal and medical scholarship; they also help professionals …

The Proportionality Trap: Why Death Tolls In War Need Not Add Up Equally, Thane Rosenbaum

Touro Law Review

Imagine a war without battlefields. There are no uniforms. Civilians and combatants are indistinguishable. Homes, schools, hospitals, and religious buildings are used as command and communication centers, and for the warehousing of weapons. Apartment rooftops are launching pads; the civilians who live inside . . . human shields. There are over 300 miles of reinforced tunnels, all outfitted with weapons and passageways for terrorists to take hostages and travel freely. Beyond Proportionality examines Israel’s battles against Hamas and Hezbollah under the laws of war and concludes that its war time conduct was based on military necessity and fought justly. The …

Anatomy Of A Successful College Closure, Kevin P. Mcdonough

Touro Law Review

Alarming forecasts of mass closures of colleges and universities in the United States have been part of the higher education landscape for many years now. Unfortunately, such prognosticators have been proven largely correct as college closures have been occurring with increasing regularity. The closure process has been carried out with varying degrees of success. At one end of the spectrum lies the poorly planned, precipitous closure, which often garners the most attention because of its devastating impact on students and their families. This Article examines certain actions and strategies that the leadership of a college compelled to cease operations can …

Unprecedented Leadership For Unprecedented Times: The Ethical Imperative For Transformational Change In American Higher Education, Andrés Acebo

Touro Law Review

Many eras quietly yield to another while its institutions continue speaking the language of a world that no longer exists. Such moments expose the widening distance between inherited assumptions and emerging realities, between institutional memory and societal need, between what once served the public well and what the future now requires. American higher education has arrived at such a moment. For more than a decade, its challenges have been described through the language of crisis. The prevailing literature has documented enrollment decline, demographic transformation, fiscal instability, technological disruption, political polarization, declining public confidence, and institutional fragility with increasing sophistication. Yet …

The Role Of Legal Uncertainty, Risk, Institutional Size, And Mission In Presidential Selection: Is The Trend To Lawyer-Presidents An Unmitigated Good?, Nora V. Demleitner

Touro Law Review

This Article builds on Patricia Salkin’s May It Please the Campus which documents the extent to which legally trained persons have led U.S. institutions of higher education since colonial times. It explains the perennial attraction of lawyer-presidents despite substantial changes in legal training, in the professional formation of attorneys, and the transformation of higher education, especially with the rise of the modern research university, governmental investment, and heightened regulation of colleges and universities. Governing boards are increasingly attracted to the skills ascribed to lawyers and their personal characteristics, including the common law appreciation for slow change. This Article highlights how …

Higher Education’S Legal Reckoning: The Institutional Lawyer—More Than A Trend, Jenean Taranto

Touro Law Review

Higher education institutions (IHEs) operate in an increasingly complex legal and regulatory environment that has transformed institutional governance, administration, and leadership. Since the enactment of the Higher Education Act of 1965, colleges and universities have experienced growing federal, state, and quasi-regulatory oversight, a phenomenon commonly described as the “lawyerization” of higher education. This process has resulted in expanded compliance obligations, increased litigation risks, and greater reliance on legal expertise within institutional operations. Recent federal actions following the inauguration of President Donald Trump in January 2025— including executive orders, agency guidance, policy memoranda, and related litigation—have intensified regulatory uncertainty and further …

Titletown Madness: Title Insurance Through The Lens Of Tribal Jurisdiction And The Lasting Legacy Of Allotment, Nicholas Stamates

Marquette Law Review

American Property Law and Federal Indian Law have a conjoined history going back to Johnson v. MʻIntosh, 21 U.S. (8 Wheat.) 543 (1823), where the Supreme Court ruled that private citizens could not purchase aboriginal title from Indians. Decades later, the Dawes General Allotment Act of 1887 resulted in non-Indian fee simple landowners purchasing what the Federal Government deemed “surplus” federal land in the un-allotted former Indian land, which is still part of the Reservation’s legal jurisdiction. An unintended consequence of this process, which resulted in a checkerboard pattern of land title in Indian Reservations across the country, has recently …

Toward A Framework For A Law Of Electronic Intangibles Liability, James M. Beck, Alexander M. Deguire

Marquette Law Review

Products liability law was built for a world of gears, levers, and physical failure. It now confronts a marketplace dominated by software, data, algorithms, and artificial intelligence—objects that do not break, shatter, or wear out, but nevertheless cause real and sometimes catastrophic harm. Courts and commentators increasingly respond to this tension by asking whether these digital systems are “product-like” enough to be squeezed into existing strict liability frameworks. This Article argues that this is the wrong question.

The Article traces the historical foundations of strict products liability; explains why courts have traditionally excluded intangibles from its reach; and examines recent …

A Matter Of Life And Death: Give Me All Of Your Money And I'Ll Give You Healthcare, Shilanka I. Lewis

Marquette Law Review

The Medicaid Estate Recovery Program (MERP) is a federal mandate requiring states to recover costs of long-term care and related services provided to Medicaid beneficiaries from their estates after death. This Article explores the core arguments supporting and opposing MERP, offering a balanced analysis of its ethical, legal, and economic dimensions. Proponents argue that estate recovery ensures fiscal responsibility by recouping taxpayer dollars and preventing wealth transfer from those who received public assistance to their heirs. Proponents contend that MERP upholds the principle that Medicaid is a need-based program and a payor of last resort. Conversely, critics argue that MERP …

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.

Implementing Young Adult Court In Minnesota, Sarah Dohm

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

More Than Bad Neighbors: Data Centers And Minnesota's Newest Attempts To Regulate Them, Daria Mcgucken

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Assessing Liability For School Shootings, Nanci K. Carr

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Dan Subotnik Tribute, Dr. Patricia Baia

Touro Law Review

No abstract provided.

Rent Abatement In Wisconsin: Duty To Repair A Broken Statute, Brady Wirkes

Marquette Law Review

Wisconsin, like many states, has a rent abatement statute that authorizes tenants to withhold rent from their landlord. Despite the apparent strength of the rent abatement statute, tenants rarely utilize it. The statute, as it exists, fails to provide an adequate safety net for tenants. Even tenants with flawless abatement arguments are currently required to risk eviction to make a claim. However, the risk of eviction is merely the tip of the iceberg.

This Comment explores the complexities of a rent abatement claim in Wisconsin, highlighting the difficulties that tenants face trying to successfully withhold rent. Wisconsin’s rent abatement statute …

Jay Wesley Murphy Collection, University Of Alabama School Of Law

Manuscript Collections

The Jay Wesley Murphy Collection is comprised of personal and professional papers, including arbitration case files, audiotapes, notes, transcripts of classroom presentations and discussions, and books.

Artificial Intelligence And The Article 36 Legal Review, Russell Buchan

Saint Louis University Law Journal

This article examines the application of the Article 36 legal review obligation to new weapons, means, or methods of warfare that make use of artificial intelligence. This article assesses: the customary international law status of Article 36; who must conduct legal reviews; what must be reviewed; when a legal review must occur; the legal standards against which reviews must take place; and the conduct and nature of legal reviews. This article argues that, properly interpreted, legal reviews under Article 36 should be seen as a dyadic process that can help inform commanders as to how complex and high-powered technologies such …

Harnessing Your Superpower As A Lawyer, Rebecca Frank Dallet

Marquette Law Review

None

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, …

Back To The Fourth Amendment, Shea Daley Burdette

Marquette Law Review

Does the Fourth Amendment protect against governmental seizures of an individual’s digital property? The answer depends on whether government action constitutes a meaningful interference with digital property. Back to the Fourth Amendment considers the Founders’ intentional choice to use two separate words, search and seizure, to protect against governmental overreach. The Article advances an approach to the seizure analysis that protects against governmental seizures of digital property—by encouraging the Court to look at whether the government access meaningfully interfered with an owner’s right

to exclude, historically recognized as a possessory interest.

The Fourth Amendment was adopted in response to “reviled …

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 …