Digital Commons Network^™

Rectifying The Rome Statute And Draft Articles On Prevention And Punishment Of Crimes Against Humanity To Include The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today. Combatting these ongoing atrocity crimes is essential to ensure that human rights are upheld by the international community. The crime of the slave trade fills an impunity gap, especially in light of recentharms perpetuated by the Islamic State of Iraq and Syria (ISIS) against the Yazidi in Iraq. Revitalization of the conceptualization of the slave trade as a crime under international law might ensure greater enforcement of one of the oldest core international crimes. Critical proposed amendments …

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

Articles

This essay provides a roadmap to the current landscape of neutrality and disclosure. It then suggests three possible reforms to the FAA that would provide better guidance to arbitrators, parties, and courts. Moreover, this essay argues that if the FAA cannot be sufficiently amended, states should take the lead. States can continue to more clearly outline disclosure requirements and enforce clearer standards than the current version of the FAA.

The Impossibility Of Religious Equality, Zalman Rothschild

Articles

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Articles

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

Articles

The article critically examines the erosion of stare decisis under the Roberts Court, highlighting concerns about the Supreme Court's increasing willingness to overturn established precedents. While acknowledging the importance of stare decisis in maintaining stability and equality, the author argues that its practical value is being undermined by ideological polarization and a departure from traditional legal reasoning. The article questions the Court's recent approach to precedent, particularly in cases like Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard, and critiques the conservative majority's aggressive use of judicial power.

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea K. Schneider

Articles

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

Adjudication Hiding In Plain Sight: Rethinking Standing In Rulemaking Petition Cases, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Interpretive Rules Are The New Regulations: Agency Guidance After Loper Bright, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Trauma-Informed Judicial Practice Meets Therapeutic Jurisprudence: Compassionate Written Judgments In Child Protection Cases, Shelley Kierstead

All Papers

Society has become acutely aware that trauma arises from many life events and manifests in a range of physical and psychological symptoms. The legal community is increasingly recognizing that clients living with trauma effects would be much better served with trauma-informed services. While much of the emerging literature in the legal field focuses on lawyers’ work, there is growing recognition that judges can also play a role in responding effectively to trauma.

In child protection cases, trauma frequently exists at different yet related levels – for the child who is the subject of protection proceedings, and for one or more …

Labour Against The Law? Contesting The Restrictive Norms Of Industrial Legality Through Unlawful Strikes, Eric Tucker

All Papers

North American regimes of industrial legality provide workers with protected rights to organize, bargain collectively and strike. However, they also limit the freedom to strike. Trade unions commonly accept and enforce these limits, but at great cost to solidarity and militancy. This article examines the many ways law works against labour by restricting the freedom to strike and explores the practice of unlawful strikes in North America, including recent examples that resulted in successful outcomes. It concludes with reflections on the revival of unlawful strikes as a tactic for rebuilding and remobilizing the North American labour movement. While the article’s …

The Ai-Copyright Trap, Carys Craig

All Papers

As AI tools proliferate, policy makers are increasingly being called upon to protect creators and the cultural industries from the extractive, exploitative, and even existential threats posed by generative AI. In the haste to act, however, they risk running headlong into the Copyright Trap: the mistaken conviction that copyright law is the best tool to support human creators and culture in our new technological reality, when in fact it is likely to do more harm than good. This is a trap in the sense that it may satisfy the wants of a small group of powerful stakeholders, but it will …

Social Conflict And Indigenous Consent In Mining: A Primer On Csr, Esg And Social Disclosures To Investors, Shin Imai

All Papers

The transnational corporate structure of mining companies makes it challenging to conduct independent investigations of allegations of social or environmental harm. A parent company can hide behind a multitude of subsidiaries in a multitude of jurisdictions to avoid liability. This article explores one way to bypass these corporate structures through the disclosure requirements of securities legislation. When a parent company fails to disclose social conflict or lack of Indigenous consent at a project, investors may be harmed when the stock price falls. This article describes six empirical studies, supported by extensive macro studies, which show that when social conflict or …

Canadian Gaar And Statutory Interpretation, Jinyan Li, Joanne Magee

All Papers

The Canadian GAAR is an anti-abuse rule that denies the tax benefit resulted from abusive avoidance transactions. This paper examines the history, technical design, policy objectives and judicial interpretation of the GAAR. It explains the role of the new preamble and economic substance in applying the GAAR.

Freedom Of Peaceful Assembly Under Section 2(C) Of The Charter: A Call For Action, Jamie Cameron

All Papers

“A Call for Action” builds on the author’s previous work on s.2(c) for the Rouleau Commission (“Freedom of Assembly and Section 2(c) of the Charter”; available on SSRN and Osgoode Digital Commons). There is no framework of legality under the Charter for the scope and limits of peaceful assembly, and this follow-up paper begins the task of filling that gap. It addresses the relationship between s.2(b) and s.2(c), critiquing the “factual matrix principle” for subsuming issues freedom of assembly into freedom of expression, and explaining that assembly is a distinctive collective entitlement that is spatial and performative in nature. …

What Is The Standard Of Review For (Mixed) Constitutional Questions?, Anthony R. Sangiuliano, Mark Friedman

All Papers

According to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the …

The Vicious Patent Cycle: Addressing The Current Conflict Facing Startup Valuation And Patent Risk Through Policy Change, Karlie Hinton

IP Theory

Young, startup, and growth companies play an increasingly important role in driving innovation and economic growth, but they face distinct challenges when attempting to leverage valuable assets to secure funding and scale their ventures. The valuation of startup companies, especially those built around new technologies and corresponding intellectual property, presents a complex challenge. With limited financial history and uncertain futures, investors often turn to proxies like patents to ascribe potential value. In recent years, the practice of startups using patents to secure investment and higher valuations has become increasingly common. However, this growing reliance on patents raises important questions about …

The Mathematics Of Regulatory Fragmentation: Understanding The Multiplicative Costs Of State-Level Platform Requirements, Amanda Reid

IP Theory

The recent wave of state-level social media regulation represents an unprecedented experiment in territorial control of digital platforms. While constitutional questions around state authority remain central to these debates, this article examines a distinct but complementary concern: the mathematical reality of how overlapping technical requirements multiply compliance burdens. These laws aim to protect youth online through technical mandates, yet they create a regulatory patchwork that generates multiplicative rather than additive costs. Following combination theory [N(N-1)/2], each new state regulation creates conflict points with existing requirements.

This article analyzes how this regulatory multiplication affects platform architecture, user experience, and safety outcomes. …

Under The Radar: The Hidden Harms Of Patent Practices In Defense Contracting, Hunter Schmittou

IP Theory

28 U.S.C. § 1498 allows the federal government and its contractors to use patented technologies without prior authorization, with the government assuming liability for infringement. While originally intended to facilitate procurement, its modern application has weakened patent protections, allowing contractors to incorporate patented innovations with minimal legal or financial consequences. This system disincentivizes private-sector investment in military technology, distorts competition, and increases procurement inefficiencies, ultimately placing the burden of infringement on taxpayers. The resulting imbalance not only stifles innovation but also entrenches reliance on a small group of dominant defense contractors, reducing technological diversity and slowing progress. Addressing these shortcomings …

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

Mandatory Fertilizer Regulations: A Survey Of State And Federal Laws, S. Emily Grams, James Rehwaldt

William & Mary Environmental Law and Policy Review

The Environmental Protection Agency describes nutrient pollution as “one of the most widespread and challenging environmental problems faced by our nation.” Despite this acknowledgment, federal and state governments impose little to no mandatory laws to regulate the application of synthetic fertilizers to farmland, the primary source of nutrient pollution. Further, emissions from agriculture play a key role in global emissions; failing to address them could prevent the global attainment of the 1.5 degrees Celsius and 2 degrees Celsius climate change goals. In an attempt to shed light on the issue, this Article describes the significant climatic and environmental impacts of …

A Geopolitical Economy Analysis Of China And India’S Approaches To Transnational Data Governance, Yujia He, Ka Zeng

Patterson School of Diplomacy and International Commerce Faculty Publications

Recent literature on the behavior of rising powers in digital trade and data governance highlights their discourses of data sovereignty and desire to preserve domestic policy autonomy. This article contributes to the literature by employing a political economy lens that shifts the focus from the nation-state/inter-state framework towards the dynamics of state–capital relations, allowing for a more historical and contextual understanding of the geopolitics of data governance in emerging economies. Using China and India—two of the largest emerging economies—as comparative cases, and drawing on secondary data from government documents and other sources, the article argues that the interplay between the …

About The Authors, Sjsj

Seattle Journal for Social Justice

No abstract provided.

Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability, William H. Widen, Marilyn Wolf

Journal of Law and Mobility

A traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc—traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a “safety risk.” The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just as attention …

Child Abuse In The Name Of Free Speech: Against Protecting Conversion Therapy As Free Speech, Siobhán Nolan

Seattle Journal for Social Justice

No abstract provided.

Youth Voice: Civic Engagement, Rights, And The Wellbeing Of Children, Jonathan Todres, Folashade Epebinu, Chelsea Osei, Gabrielle Listana

Seattle Journal for Social Justice

No abstract provided.

America's Forgotten History Of Constitutional Crisis, Marcus A. Gadson

Faculty Publications

Scholars have insisted that constitutional crisis is rare in American history. They are wrong. Constitutional crisis has been one of the most important constants in American history. The events of January 6, 2021, the assassination attempt on President Trump, and the debate about whether to invoke the Twenty-Fifth Amendment to force President Biden out of office are child’s play compared to the constitutional crises this country has endured. Those observations are only surprising because so few scholars have studied constitutional crises at the state level. They are focused on national and international constitutional crises. This Article has three goals. First, …

Antitrust: Ai And Antitrust: “The Algorithm Made Me Do It”, Robin Feldman

The Judges' Book

No abstract provided.

Tsai Today (2025), Southern Methodist University, Dedman School Of Law, Tsai Center For Law, Science And Innovation

Tsai Today

No abstract provided.

Owning Marriage In Robinson's Gilead Novels, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.