Digital Commons Network^™

The Overlooked Case Of October Term 2023: Implications Of Sec V. Jarkesy On Environmental Law, Hayden Miller

William & Mary Environmental Law and Policy Review

In the summer of 2024, the Supreme Court published its opinion in SEC v. Jarkesy. In Jarkesy, the Court held that certain administrative cases must be adjudicated through Article III courts with juries instead of administrative law tribunals. The case involved fraud charges against George Jarkesy, Jr., an investment manager. After a Securities and Exchange Commission (SEC) investigation, the agency alleged that Jarkesy had violated the Securities Exchange Act of 1934. Subsequently, SEC Administrative Law Judges (ALJs) levied civil penalties against Jarkesy for securities fraud. On appeal, the Court held that securities fraud under the Securities Exchange Act …

Extreme Prison Sentences: Legal And Normative Consequences, Melissa Hamilton

Cardozo Law Review

The article examines the phenomenon of extreme sentences—defined as those exceeding 200 years—in the federal criminal justice system, raising critical questions about their rationale, proportionality, and alignment with traditional theories of punishment. Through an empirical study of 55 such cases, the analysis highlights the role of mandatory minimums, cognitive biases, and an exclusionist mindset in driving these sentences. It critiques the normalization of extreme penalties and their implications for mass incarceration, deterrence, and human dignity.

Can Ai Empower The Rule Of Law?, Eleftheria Papadaki

North Carolina Journal of Law & Technology

No abstract provided.

Scientific Muse And Misuse: Reevaluating Authorship Attribution And Liability Allocation In The Generative Ai Age, Inbar Cohen Ganot

North Carolina Journal of Law & Technology

No abstract provided.

Future Crime: A Theoretical Foundation For Designing Effective Cybercrime Laws In The Age Of Ai And Ransomware, Thi Ha Do, Niloufer Selvadurai

North Carolina Journal of Law & Technology

No abstract provided.

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …

The Gamification Of Banking, Colleen Baker, Christopher K. Odinet

Faculty Scholarship

Gamification is coming to banking. This phenomenon is already gain-ing ground in advertising, healthcare, manufacturing, and, more recently, with the GameStop and AMC meme stock saga in securities trading. The idea behind gamification is to make transactions seem fun, playful, and even casino-like in order to elicit habit-forming, addictive-like effects with consumers. This Article argues that the rise of financial technology (“fintech”) firms and their ever-growing business relationships with incumbent financial institutions has created the necessary conditions for gamification to take hold in the banking sector. In order to explore this observation, we undertake a study of current examples of …

The Sec Proposed Cybersecurity Infrastructure Rules And New Disclosure Requirements, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

In addition to regulation of securities market issuers, the Securities & Exchange Commission (SEC) is also responsible for regulation of those entities that provide the networks, either electronic or physical, that enable the functioning of our securities markets. On February 9, 2022, the Commission published a Release for Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies containing proposals that, if adopted, would establish a new cybersecurity incident reporting and disclosure regime and require registered investment advisers (“advisers”) and investment companies (“funds”) to implement policies and procedures designed to address cyber risks. The comment period for …

Caremark's Politics, Itai Fiegenbaum

Cardozo Law Review

What propels the evolution of Delaware corporate law? In a series of persuasive articles, Professor Mark Roe explains Delaware corporate law developments as an effort to preempt federal intervention. If public outrage over corporate governance failures reaches Congress, federal lawmakers may impose reforms that undercut Delaware’s prominence and ultimately harm those that benefit from the prestige and lucre that come with it. To avoid this, Delaware courts strategically adjust doctrines to appear vigilant in protecting investors. Delaware’s adjudication of director oversight failures aligns with this account. In re Caremark, the seminal case renowned for its declaration of a proactive board-level …

Disability-Related Misconduct And The Untapped Potential Of The Disparate Impact Theory, Kelly Cahill Timmons

Cardozo Law Review

Disabilities often manifest themselves in behavior that could be characterized as misconduct. Since the early days of the Americans with Disabilities Act (ADA), courts have struggled with how to treat disability-related misconduct in the workplace. In Raytheon Co. v. Hernandez, the Supreme Court indicated that terminating an employee for violating a neutral, generally applicable conduct rule is not disparate treatment because of disability. Instead, the Court suggested that concern about the effect of such a rule on a disabled employee should be addressed under the disparate impact theory of discrimination. In the years that followed, Congress enacted the ADA Amendments …

Will Systematic Stewardship Save The Planet?, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

The largest institutional investors have solidified their status as “universal owners,” holding almost eighty percent of the U.S. stock market. The growing influence of these investors over the companies they invest in has sparked optimism among scholars and activists that asset managers will use their clout to steer firms towards Environmental, Social, and Governance (ESG) objectives. But such optimism may be misplaced. Focusing on carbon emission reduction, we argue that universal owners lack the necessary incentives and competence to pressure corporations to lower emissions.

Universal owners market ESG investments with conflicting promises of “doing well while doing good.” The untenable …

Private Equity’S Viable Path To College Athletics Investment: Potential Entity Mechanisms And Antitrust Considerations, Michael Llg

Vanderbilt Journal of Entertainment & Technology Law

The recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing …

Agentizing Privacy Preferences Without Privatizing Data Protection Policy, Frank Pasquale, Vanna Carter

Cornell Law Faculty Publications

This essay explores how consumers might exercise newly restored agency in a digital environment increasingly shaped by generative AI. Rather than expecting consumers to read privacy-related terms of service, policymakers should encourage the emergence of Automated Consumer Agents (“ACAs”) capable of interpreting privacy provisions and acting on behalf of users according to their stated preferences. These systems could automatically reject objectionable forms of data extraction, translating consumer values into actionable decisions in online transactions.

Despite this promise, the rise of ACAs would also present new problems. Without supportive policy and legal frameworks, agentization of privacy preferences could itself reproduce or …

Tort Immunity Waiver For Vaccine Injuries: Ethical And Legal Perspectives, Tammy W. Cowart, Gregory L. Bock

Accounting, Finance, Information Systems, and Business-Law Faculty Publications and Presentations

The COVID pandemic highlighted the importance of vaccine development and availability worldwide. Operation Warp-Speed in the United States accelerated vaccine production by several major pharmaceutical manufacturers, averting some of the normal administrative processes. The result has been a financial windfall for those companies. Some recent data has shown that the COVID vaccine can cause negative side effects in some patients. There are provisions in U.S. law that allow victims of vaccine injuries to recover compensation through the court system. However, even then tort remedies are limited by federal law. Since the review process was rushed during the pandemic, should tort …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

Seeing Is Believing: Identifying The “Ideal Manifestation Of Hidden Disability” In Ontario’S And Quebec’S Social Benefits Tribunals, Pascale Malenfant

Dalhousie Law Journal

The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities. This paper explores the intersection of such skepticism with the social benefits adjudication processes in Ontario and Quebec. In drawing parallels to feminist critiques of the “ideal victim” in sexual assault cases, it argues that the tribunals’ biased framework for believability is based on a claimant’s conformity to stereotypical expectations of what an “ideal” claimant with a hidden disability looks like. By comparatively examining 10 years worth of Ontario and Quebec tribunal …

Curricular Choices: Misconceptions Regarding Law School Courses, Constance Backhouse, Holland Stille, Avery Esford

Dalhousie Law Journal

Canadian law schools offer their upper-year students a wealth of optional curricular choices. Yet many students choose narrowly and poorly. This article addresses the misconceptions that many hold as they select their second- and third-year courses. Often students believe they need certain courses to get a job, to prepare for articling, to pass the bar exams, or to prepare for future legal careers. In most cases, these concerns are erroneous. This article urges students to choose based on factual evidence rather than imagined anxieties and on personal interest rather than the “group think” rigidity that infects much of the curricular …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

William & Mary Journal of Race, Gender, and Social Justice

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

William & Mary Journal of Race, Gender, and Social Justice

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

William & Mary Journal of Race, Gender, and Social Justice

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Governance In The Absence Of Government, Tracy H. Pearl

Dickinson Law Review (2017-Present)

Artificial intelligence (AI) is advancing at an unprecedented pace, with generative systems exerting growing influence over social, economic, and political life. While AI offers opportunities for innovation and efficiency, it also poses risks ranging from misinformation and job displacement to existential threats if highly autonomous systems evade human control. Across industry, government, and civil society, there is broad consensus that AI requires oversight. Yet traditional U.S. regulatory approaches face six significant barriers: (1) technology outpacing legislation, (2) limited AI expertise among policymakers, (3) regulatory capture, (4) political gridlock, (5) outdated governance structures, and (6) the inherent complexity of AI. Combined …

Sovereign Indignity And Immunity, Chun Hin Jeffrey Tsoi

Dickinson Law Review (2017-Present)

Sovereign immunity, even if not understood as a monarchical relic, embodies the notion of indignity for a government having to answer to allegations of transgressions. This Essay proposes an argument to challenge the doctrine’s theoretical basis, especially with respect to the federal government in federal court. But there is first a threshold question to be answered: has the doctrine of federal sovereign immunity been practically mooted by the “death” of Bivens v. Six Unknown Named Agents? One needs an express cause of action to sue the federal government absent Bivens, and if one has an express cause of action, under …

Rethinking Appeals In Arbitration, Abdi Aidid

Dickinson Law Review (2017-Present)

The question of whether arbitration awards should be appealable, or at least subject to enhanced judicial review, is heavily contested in the scholarly literature. This Article explains that arguments favoring or rejecting appellate review have focused on stylized conceptions of arbitration either as a species of contract or as a substitute for adjudication. This Article argues that these two dominant approaches—termed here the “contractarian” and “arbitration-as-adjudication” models—fail to adequately describe modern arbitration practice. Thus, any argument for or against appellate review that rests heavily on either of the two conceptions is unconvincing. Instead, this Article argues that the question of …

Thou Shalt Not Castrate: The Conflict Between Louisiana’S Surgical Castration Law And The Principles Of Medical Ethics, Morgan Ambrosecchia

Dickinson Law Review (2017-Present)

In 2024, Louisiana became the first state to permit courtordered surgical castration for sex offenders who have been convicted of certain sex crimes against children. Under the law, an offender who refuses to submit to the procedure will face an additional three to five years in prison without the possibility of parole, probation, or suspension of sentence. The court’s order is contingent on confirmation by a court-appointed expert that the offender is an “appropriate candidate for surgery.” However, the statutory language is vague and does not clearly define who can serve as an expert nor does it define the scope …

Venturing Into Health, Rachel E. Sachs

Fordham Law Review

In recent years, the landscape of venture capital (VC) investment in healthcare technologies has been altered by the introduction of new types of VC firms: those that have emerged from hospital systems and health insurers. However, the legal literature has not yet analyzed these new VC firms, the role they may play in healthcare innovation, and how innovation law and policy ought to consider their involvement. Hospital system and health insurer VC firms operate very differently than traditional VC firms, even those that have historically developed healthcare specializations. Instead of simply investing capital into start-up firms, hospital system and health …

Subsistence As Resistance: Reconceptualizing The Theory Of Progressive Property To Incubate Resistance To Consumerism, D.S. Pensley

William & Mary Environmental Law and Policy Review

This Article reconceptualizes the theory of progressive property by juxtaposing legal theory with the empirical study of a subsistence economy in the U.S. Subarctic. Progressive property holds that owners are bound by obligations to non-owners as a means to achieve human flourishing. The theory is constrained by the primacy of private property in Western thought, and it also lacks the ecological ethic required for sustainability. Drawing from my fieldwork, I suggest that human flourishing must additionally incubate resistance to consumerism.

Federal statute, 16 U.S.C. § 3113, defines subsistence as “the customary and traditional uses by rural Alaska residents of wild, …

Let's Bee Pragmatic: The Economic Case For Neonicotinoid Regulation In Conservative States, Annie Rosenstein

William & Mary Environmental Law and Policy Review

The importance of bees in our ecosystem and to our food system in the United States cannot be overstated. In fact, 35% of global crop production depends on bees and other pollinating insects. Pollinators not only influence the production of many foods that we hold dear and rely on, such as apples, chocolate, potatoes, and coffee, but also influence the quality of these products.

Currently, the most insidious threat against bees in the United States is neonicotinoid pesticides (neonics). While neonics are effective at killing the target populations of beetles, aphids, and flies, they are equally effective at killing pollinators, …

Environmental Bankers: States Are Billing Fossil Fuel Companies For Extreme Weather Disasters, Kelly A. Adam

William & Mary Environmental Law and Policy Review

For decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?

Maryland, …

Look What You Made Me Do, Russell M. Gold

Washington and Lee Law Review

We have understood for centuries that crime is both the product of social forces and individual choice. We know now that crime is affected by economic deprivation, addiction, trauma, and mental health issues. But American criminal legal processes hide this reality by coercing defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong. This coerced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason. A defendant who goes off-script to tell the judge that they have been repeatedly …

Double Dosing: How Brand-Name Pharmaceutical Manufacturers Manipulate Patent Rules To Extend Market Exclusivity, Elizabeth Hertzberg

Washington and Lee Law Review

A robust patent system is important for spurring innovation, but it is not without risk. Because a patent owner has exclusivity over the patented subject matter for a specific term, there is incentive to extend that monopoly however possible. Identical subject matter is unpatentable, but obvious variants of an existing patent may be allowed if the applicant agrees to the same expiration date for both patents. This agreement is called a terminal disclaimer. While patents tied together with terminal disclaimers may not necessarily lead to unjust patent term extensions, an army of terminal disclaimers directed at one invention presents a …