Digital Commons Network^™

Environment Scan Of Generative Ai Infrastructure For Clinical And Translational Science, Hua Xu, Jiang Bian, Chunhua Weng, Yifan Peng, Betina Idnay, Zihan Xu, William G. Adams, Mohammad Adibuzzaman, Nicholas R. Anderson, Neil Bahroos, Douglas S. Bell, Cody Bumgardner, Thomas Campion, Mario Castro, James J. Cimino, I. Glenn Cohen, David Dorr, Peter L. Elkin, Jungwei W. Fan, Todd Ferris, David J. Foran, David Hanauer, Mike Hogarth, Kun Huang, Jayashree Kalpathy-Cramer, Manoj Kandpal, Niranjan S. Karnik, Avnish Katoch, Albert M. Lai, Christophe G. Lambert, Lang Li, Christopher Lindsell, Jinze Liu, Zhiyong Lu, Yuan Luo, Peter Mcgarvey, Eneida A. Mendonca, Parsa Mirhaji, Shawn Murphy, John D. Osborne, Ioannis C. Paschalidis, Paul A. Harris, Fred Prior, Nicholas J. Shaheen, Nawar Shara, Ida Sim, Umberto Tachinardi, Lemuel R. Waitman, Rosalind J. Wright, Adrian H. Zai, Kai Zheng, Sandra Soo-Jin Lee, Bradley A. Malin, Karthik Natarajan, Nicholson Price, Rui Zhang, Yiye Zhang

Articles

This study reports a comprehensive environmental scan of the generative AI (GenAI) infrastructure in the national network for clinical and translational science across 36 institutions supported by the CTSA Program led by the National Center for Advancing Translational Sciences (NCATS) of the National Institutes of Health (NIH) at the United States. Key findings indicate a diverse range of institutional strategies, with most organizations in the experimental phase of GenAI deployment. The results underscore the need for a more coordinated approach to GenAI governance, emphasizing collaboration among senior leaders, clinicians, information technology staff, and researchers. Our analysis reveals that 53% of …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Creditors, Shareholders, And Losers In Between: A Failed Regulatory Experiment, Albert H. Choi, Jeffery Zhang

Articles

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse …

Secrets Of The Killing State: The Untold Story Of Lethal Injection Introduction, Corinna Barrett Lain

Law Faculty Publications

Three hours. That’s how long it took the state of Alabama to kill Joe Nathan James by lethal injection in 2022, setting a new record for the longest execution in United States history. James’s autopsy showed puncture wounds and bruising at the knuckles and wrists, indicating that executioners had tried (and failed) to insert an IV in those locations. It revealed puncture wounds in his musculature, nowhere near the anatomical vicinity of a vein. And it documented a deep, jagged incision that pathologists suspect occurred when James flinched as executioners were attempting to perform a “cutdown”— a surgical incision used …

Social Murder And The Antisocial Contract, Marissa Jackson Sow

Law Faculty Publications

Social murder is widely understood as the reckless and calculated killing by the State of people who are considered surplus and thus made redundant by the State. It is not merely an outcome, however; social murder, is an antidemocratic process, and—certainly as it is manifesting in the United States under the second Trump Administration—is also an anti-constitutionalist project aimed at destroying society, eliminating social goods, and renegotiating an American social contract that is, definitionally, antisocial. Social murder is as much about the elimination of social life as it is about the interruption of physical life. And it is fueled by …

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Barrett Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

The Kincare Craze In Child Protection: Romanticism, Subterfuge, And Racial Separatism, James G. Dwyer

Faculty Publications

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

Reparations For Civilian Victims In Ukraine And Gaza: Legal Frameworks, Normative Debates, And Implementation, Chiara Giorgetti

Law Faculty Publications

Reparations for the victims of armed conflict and mass human rights violations are a cornerstone of international law. Yet, as recent conflicts in Ukraine and Gaza illustrate well, reparations remain a difficult subject and raise important questions regarding the scope of State responsibility, the rights of individual victims, and the availability of appropriate mechanisms for adjudicating claims. [...]

Artificial Intelligence And Energy Democracy, Joel B. Eisen, Heather E. Payne

Law Faculty Publications

Artificial intelligence (AI) is quickly transforming many professional activities, and the electric grid has already started to see adverse impacts from its use, such as the burgeoning demand for electricity from data centers. This Article acknowledges these impacts, but also demonstrates that AI can be put to beneficial use on the grid. It proposes and describes a specific use of AI: assisting citizen intervenors in public utility commission (PUC) proceedings, who currently face barriers to participation due to the technical complexity and confidentiality imposed by monopoly utilities. The Article describes how AI can assist intervenors to overcome the barriers to …

Regulating The Forever Wild, Edward W. De Barbieri

SMU Law Review

Communities in rural areas regularly come into conflict with government bodies regarding the use of protected lands. From New York, to Alaska, to Nevada—and many places in between—a common question emerges: who should have authority to regulate human activity on and around wilderness lands? It is not a new phenomenon for urban dwellers, often controlling money and political power, to use influence and a specter of conservation to control what is permitted in rural spaces. Resulting unrest among rural resi­dents may be the result of the exclusion of poor, racially underrepresented, indigenous, and other residents who earn their livelihood from …

Obituary For The Birth Certificate, Malinda L. Seymore

SMU Law Review

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

The Future Of Frozen Embryos, Clare Ryan, Benjamin J. Mcmichael

SMU Law Review

he 2024 Alabama Supreme Court decision in LePage v. Center for Reproductive Medicine, which declared frozen embryos to be “children,” represents a significant shift in the legal treatment of in vitro fertilization (IVF) in the United States. This Article examines the context, implications, and potential consequences of LePage for family law, tort law, and access to reproductive technologies. The Article analyzes how this shift could impact disputes over embryo disposition, establishment of legal parentage, and liability for fertility clinics. It also explores the decision’s relationship to broader debates about fetal personhood in the wake of Dobbs v. Jackson Women’s …

Socially Responsible Ai In The Gpt Era, Yussuf A. Aleem

SMU Law Review

Recent advancements in artificial intelligence (AI) showcase its rapid evolution and promise, with the potential to profoundly transform decision-making, self-expression, and even the practice of law. However, AI also presents formidable challenges, including the further entrenchment of societal inequalities, widespread labor disruption, and existential threats to humanity. Modern AI systems show early signs of general intelligence, enabling them to perform a wide range of tasks beyond those of chatbots in both virtual and physical environments. Despite industry assurances of responsible AI development, these technologies are easily exploited and often exhibit troubling behaviors that even their creators struggle to understand.

This …

Front Matter

SMU Law Review

No abstract provided.

Guilty Pleas Matter: Waivers And The Forgotten Solemnity Of A Sacred Process, Julian A. Cook Iii

SMU Law Review

Approximately 98% of federal cases are resolved by means of a guilty plea. Thus, it is the guilty plea hearing, not the jury trial, that is the heart and lungs of our criminal justice system. Given the frequency of its use, coupled with the deeply impactful personal consequences that necessarily accompany a conviction, district courts play a critical evaluative and safeguarding function. As famously stated by the Supreme Court in Brady v. United States, the decision to plead guilty “is a grave and solemn act to be accepted only with care and discernment . . . .”

Guilty Pleas …

Improving Regulatory Notice, Joshua Ulan Galperin, E. Donald Elliott

SMU Law Review

Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens’ groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and …

Protect My Property, Not My Privacy!: How A Recent Circuit Split Illustrates The Need To Reinstate The Traditional Property-Based Fourth Amendment Framework, Mary Katherine Smith

SMU Law Review

The Fourth and Fifth Circuit’s split calls for reexamination of the Fourth Amendment search framework—a framework that revolves around one’s reasonable expectation of privacy. The underlying question motivating this Comment is how to account for individual privacy in a world where, arguably, old notions of privacy no longer exist. And ironically the answer lies in shifting the focus from privacy to property. The circuit split over geofence searches is a symptom of a larger problem: The current Fourth Amendment search framework is unworkable in the digital age.

Thus, this Comment has dual objectives. The first objective is analyzing the geofence …

Agency Capture In Immigration Law, Shalini Bhargava Ray

SMU Law Review

Debates over administrative law doctrine and practice have long occurred in the shadow of agency capture, a phenomenon by which private interests co-opt an agency’s public mission. Scholars posit that capture often operates through the migration of agency personnel to the very industries they previously regulated and vice versa, referred to as the “revolving door.” The tremendous administrative law literature on agency capture, however, has never systematically addressed the potential relevance of capture to immigration regulation and enforcement. Given the vastness of the immigration bureaucracy, the massive annual appropriations it commands, and immigration’s salience in public discourse, the possibility of …

You’Ve Got Mail—Or Not? The Deepening, Decades-Long Circuit Split Surrounding The Tax Filing Mailbox Rule, Colton Franks

SMU Law Review

Tax filing deadlines have always been a source of anxiety for U.S. citizens, and the law surrounding the subject is equally perplexing. Federal courts developed a mailbox rule to determine whether a document is timely filed through the mail, but the federal circuits did not agree on how it functioned. Congress subsequently passed Section 7502 of the Internal Revenue Code to clear up confusion among the circuits. However, this only sparked a new debate—whether the statute takes the place of the common law mailbox rule or merely adds another avenue for the taxpayer to prove timely filing. This circuit split …

After Identity: Reverse Discrimination, Anti-Essentialism, And The Future Of Title Vii, Maayan Sudai, Lihi Yona

SMU Law Review

This Article argues that the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services marks a turning point in Title VII’s long-standing struggle with identity. By striking down the “background circumstances” rule, a doctrine that required majority-group plaintiffs to meet a heightened evidentiary burden, the Court appeared at first glance to reaffirm its steady march toward strict anticlassification. We offer a different reading. We contend that Ames gestures toward a third, overlooked normative framework within antidiscrimination law: anti-essentialism. This framework, rooted in feminist, critical race, and queer theory, rejects both the rigidity of anticlassification and the categorical …

The Granny Flat Rebellion: Preempting Local Adu Restrictions, Andrew Welch

SMU Law Review

States around the country are increasingly facing the challenge of housing shortage and uncooperative localities attempting to keep developers out of their neighborhoods. The “Not in My Backyard” (NIMBY) groups are not representative of the American desire to create affordable housing, and allowing neighborhoods to dictate national and state policy is ineffective. Accessory dwelling units (ADUs)—small, self-contained residential units on single-family-zoned property—are a cost-effective strategy to expand housing options, promote intergenerational living, and foster economic mobility. This Comment addresses how states can chisel away at the housing crisis and how ADUs may alleviate many of the problems if they are …

Front Matter

SMU Law Review

No abstract provided.

Ready Or Not: How Congressional Dysfunction And Loper Bright Enterprises V. Raimondo Will Shift U.S. Regulation Of Emerging Technologies To The Federal Bench, Michelle Benedetto Neitz

SMU Law Review

This Article is the first in legal academic literature to consider how the power shift generated by Congressional dysfunction and the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo will affect emerging technology law. Power is moving toward the judicial branch of government— and away from the legislative and executive branches. As a result, federal courts will now take a leading role in the evolution of emerging technology law in the United States.

Unfortunately, the federal judiciary is not prepared for this new era. Drawing from the information processing theory, this Article explains why federal judges will be deciding …

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

SMU Law Review

In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted …

Second Amendment Originalism, “General Law,” And Rahimi’S Two-Fold Failure, Nelson Lund

SMU Law Review

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the intermediate-scrutiny approach adopted by the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical …

Levels Of Generality, The Limits Of Originalism, And The Supreme Court’S Second Amendment Jurisprudence, Amanda L. Tyler

SMU Law Review

Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post-Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with …

Front Matter

SMU Law Review

No abstract provided.

Profiteers Of Death, Match Dawson

Faculty Articles

Brazenly operating within the illicit world of stranger-owned life insurance (“STOLI”), unscrupulous investors and colluding life insurance agents unapologetically engage in a calculated dance of fraud and deceit. With the skill of seasoned con artists, these “Profiteers of Death” prey upon the unsuspecting elderly community, strategically targeting senior assisted living facilities by dangling the golden carrot of easy money in exchange for unwittingly selling away their insurability for little more than copper pennies. Standing idle like salivating vultures, the Profiteers of Death make a mockery of legislative attempts to curb the illegitimate secondary market, perfectly exploiting regulatory deficiencies as they …

Everything New Is Old Again: The Coming Metaverse, Platforms As Premises, And Addressing Harms That Occur Behind The Veil Of Scale, Lara Putnam, Jena Martin

Faculty Articles

Increasingly, social media companies have engaged in the creation, development, and deployment of "worlds" within a virtual reality setting, leading to significant interactions among users within these engineered spaces. However, this expansion has also been accompanied by harms. While some harms are unique to immersive reality technology, many mirror harms that occur in the analog environment, including fraud, theft, verbal abuse, and child sexual exploitation. Others replicate harms that have already exploded in non-immersive online spaces, including image-based sexual exploitation, cyberstalking, and invasion of privacy. Unfortunately, the architecture and infrastructure of these spaces has created what we coin here to …