Digital Commons Network^™

Corporeal Property And The Limits Of Nagpra, M. Alexander Pearl

Faculty Articles

No abstract provided.

Legislating Literacy: The Need For Reading Reform In The United States, Lia M. Williams

Roger Williams University Law Review

No abstract provided.

Patent Textualism, David O. Taylor

Faculty Journal Articles and Book Chapters

The Supreme Court today embraces textualism—the practice of interpreting legal text by reference to how an ordinary person would have understood that text at the time it was promulgated. Yet, when it comes to patent cases at the Court interpreting the statutory provision governing patent eligibility, textualism has rarely been used as an interpretive tool. This Article, besides highlighting this contradiction, will consider how textualism’s application to this foundational aspect of the patent statute would change patent law.

This Article will analyze the Supreme Court’s adoption of textualist principles in other fields and then evaluates the application of textualism to …

More Than Miscommunication: Rethinking Interpretation At The Asylum Office, Pooja R. Dadhania, Hillary Mellinger

Faculty Scholarship

The United States requires asylum applicants to provide their own interpreters for their interviews at the Asylum Office, barring exceptional circumstances. Applicants can face significant hurdles in finding suitable interpreters, who play a critical role in giving them a voice in the asylum process. Inaccurate interpretation can have serious ramifications such as denial of an applicant’s asylum claim. Despite the critical need for meaningful language access in the asylum process, interpretation at the Asylum Office remains understudied. This article represents a first attempt at bringing the scholarly and practitioner communities together to rethink interpretation at the Asylum Office, with the …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Michigan Journal of International Law

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Emory Law Journal

Generative AI, machine learning, and other computational uses of copyrighted works pose profound conceptual questions for copyright law. This Article surveys multiple countries with different legal traditions and local conditions to explore how they have responded to these questions in relation to the use of copyrighted works for AI training without express permission from the relevant rightsholders. Our survey suggests an emerging international equilibrium in which jurisdictions from around the world have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text and data mining, computational data analysis, and AI training can be socially …

Collaborative Efforts To Combat Racism: Academics And Criminal Defense Lawyers In The Pursuit Of Racial Justice In California, Alvarez, Karina, Cameron-Wedding, Dr. Rita

Santa Clara Law Review

Lawyers and academics frequently cooperate to shape public policy and outcomes in specific cases, including in the area of racial justice. However, too frequently, lawyers and academics operate in silos—working towards the same goal of racial justice, but in different arenas. Lawyers are bound to their clients, foremost, and to advocacy before the court—often so much so that they might lose sight of broader challenges, achievements, and theories in racial justice. By contrast, academics spend their lives in the abstract, leaving them at risk of losing sight of the on-the-ground impact of their expert theoretical advances. This article aims to …

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

Publications

No abstract provided.

Transforming Tax Expenditures, Sloan G. Speck

Publications

For decades, reformers have advocated the repeal of tax expenditures--disguised government spending through special preferences in the Internal Revenue Code. And yet, tax expenditures persist, impairing federal tax receipts by more than $1.8 trillion in 2024. This Article introduces a novel mechanism for tax expenditure reform. To the extent that direct statutory repeal proves impossible or impractical, lawmakers can achieve an equivalent result through a strategy of legislative anti-repeal. By radically expanding a tax expenditure's legal scope, then adjusting progressive income tax rates to account for revenue loss and distributional considerations, lawmakers can effectively eliminate tax expenditures from the tax …

Justice Barrett And Nondelegation, Hank Scheffler

Student Works

No abstract provided.

Toward Objectivity In International Criminal Law: Modeling Genocide, Kevin Chamow

Student Works

No abstract provided.

The Counter-Militia Second Amendment, Tom W. Bell

Wyoming Law Review

Despite their many disagreements about how to interpret it, courts and commentators agree the Second Amendment of the United States Constitution favors the militia. Some think the Second Amendment protects an individual right to keep and bear arms so citizens can better defend themselves and their country. Others think the right pertains only to active service in a militia that has been called into public service. But what if they all got it backwards? What if the Second Amendment, instead of empowering the militia, aims to check and balance it? On this countermilitia reading, the Second Amendment begins by apologizing …

Generative Ai And Finding The Law, Paul D. Callister

Faculty Works

Legal information science requires, among other things, principles and theories. The article states six principles or considerations that any discussion of generative AI large language models and their role in finding the law must include. The article concludes that law librarianship will increasingly become legal information science and require new paradigms. In addition to the six principles, the article applies ecological holistic media theory to understand the relationship of the legal community’s cognitive authority, institutions, techné (technology, medium and method), geopolitical factors, and the past and future to understand the changes in this information milieu. The article also explains generative …

Falsifying Tradition, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that foundational issue.

Part I surveys the ways in which courts use tradition in different …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrel A. H. Miller

Public Law and Legal Theory Working Papers

No abstract provided.

My Body, My Voice: Defining Vocal Identity Rights To Combat Ai-Generated Deception, Kamran Moos

Marquette Intellectual Property & Innovation Law Review

Kamran Moos emphasizes the growing risk of nonconsensual AI-generated voice misappropriation and suggests a novel legal framework to address the issue. Moos explains how AI models have made voice replication quick and easy, in some cases requiring only a two-second voice clip to produce a convincing audio recording. These AI-generated recordings can be used to carry out identity theft, misinformation, and commercial exploitation. Moos argues that current legal frameworks, such as the right of publicity, misappropriation, and copyright law, are inadequate to protect individuals from AI-generated voice misappropriation. He advocates for a new legal framework rooted in copyright and property …

Constitutional Drafting Processes And Constitutional Success, Adam Chilton, Murat C. Mungan, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Several recent constitution-making processes have been celebrated for being participatory, inclusive, and representative. However, many of these processes also failed. We theorize that aspects of these kinds of constitutional drafting processes could reduce the probability of constitutional success. To show why, we construct a “Constitution Drafting game” (CD game) in which representatives from different interest groups must draft a constitution. We consider the case where the probability of constitutional success is single peaked, but the value from successful adoption is increasing in the degree of issue protection chosen. The drafting process then leads to protection choices that are above those …

The Genesis Of Constitutions: A Natural Language Processing Approach, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

The diffusion of constitutional ideas and models has been the subject of extensive scholarship. In this paper, we use natural language processing methods to examine the persistence of constitutional ideas and models, focusing on how 16 core and iconic constitutions influence 572 newer constitutions over a long period (1900–2020). Our findings indicate that “old” core constitutions (such as those of the U.S. of 1789, Spain of 1812, France of 1848, and to a lesser extent France of 1791) have maintained significant influence over those 121 years. Austria of 1920 and France of 1946 are the most influential among the 20th …

Algorithmic Selection Of Iconic Constitutions, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

This chapter examines the influence of pre-20th century constitutions using a quantitative approach, comparing expert-selected “iconic” constitutions with those identified algorithmically. In prior work, human experts identified four influential constitutions: the U.S. 1791, France 1791, Spain 1812, and France 1848. Here, we employ a genetic algorithm and Document Term Matrix (DTM) analysis to assess which one or four of 180 pre-1899 constitutions had the greatest textual impact on 581 post-1900 constitutions. Two criteria guide the selection: coverage and originality. Through iterative optimization, the algorithm identifies the most textually influential constitutions, allowing for a direct comparison with expert selections. This chapter …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Kevin L. Cope, Jens Frankenreiter, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Coase-Sandor Institute for Law & Economics Research Paper Series

In the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for— lawyers and other human experts. Several studies have examined LLMs’ performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs’ competence at one of law professors’ chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come …

Command And Consequence: Reassessing King David’S Military Decisions In The Uriah Affair – A Legal And Ethical Analysis In The Context Of Modern Legal Theory, Jonathan Hasson, Oded Mudrik, Abraham Tennenbaum

Touro Law Review

This study critically reevaluates King David's command in 2 Samuel 11 and 12 to place Uriah the Hittite in the battle's frontlines, resulting in his death, through the contemporary lens of military law and ethics. By juxtaposing the ancient narrative with modern legal doctrines, it investigates the complexities of command responsibility and the intersection of personal motives in military orders. Focusing on the interplay between David's personal entanglements with Bathsheba and his official capacity as a military leader, the analysis navigates the ethical quandaries and legal ramifications of his decisions. This piece methodically dissects the Biblical text and contemporaneous legal …

Art As The Prosecutor’S Weapon: The Use Of Rap Lyrics Evidence At Trial, Thompson, Mikah K., Raheem, Sierra

Santa Clara Law Review

Are rap lyrics worthy of the same protections that other forms of creative expression enjoy, or is there something inherent to rap lyrics that renders them autobiographical, confessional, and reflective of the author’s true intentions and desires? This Article will attempt to answer that question. In doing so, the authors will take the reader on a voyage through a history that is not widely known among the attorneys, judges, expert witnesses, and jurors who are frequently called upon to interpret the art form known as Hip Hop.

This journey requires an exploration of our country’s history of chattel slavery, for …

Queers, Closets, And Corporate Governance, Darren Rosenblum

Faculty Publications

The past few years have seen several corporate diversity initiatives that include Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) people. In 2020, Nasdaq, the world’s second-largest stock exchange, and California, the largest state, both adopted rules to encourage board diversity for underrepresented groups, including LGBTQ+ people. Since that time, the Los Angeles Superior Court struck down California’s law, the Fifth Circuit invalidated Nasdaq’s rule, and the Trump administration initiated a slew of anti-Diversity Equity and Inclusion (DEI) and anti-LGBTQ+ measures. In the context of this sharp ideological turn, this Article attempts to step back and tackle a larger question: how can …

Unveiling Secrecy: A Qualitative Analysis Of The Breonna Taylor Grand Jury Proceedings, Taylor Bettis

Theses and Dissertations--Psychology

Grand juries have faced heightened scrutiny in recent decades following high-profile cases involving police use of lethal force against Black civilians. In 2020, Police officers killed Breonna Taylor while executing a search warrant at her home. Despite widespread public outcry, it remains unclear how prosecutors failed to indict the officers involved on charges directly related to her death. Guided by critical race theory, procedural justice, and theories of authority, the current project used reflexive thematic analysis to examine the Breonna Taylor grand jury proceedings. We identified two main themes: structural influences and narrative influences. Structural influences examine how prosecutorial authority, …

Regenerating Justice: Chatgpt And The Legal Minefield Of Generative Ai, Katie Szilagyi

Canadian Journal of Law and Technology

This paper adopts an automation bias lens to cast doubt on the growing claims that GenAI is a transformational tool for legal industry. In this context, automation bias refers to the well-known psychological phenomenon in which human decision-makers unwittingly defer to automated processes, flowing from overreliance on the accuracy of the automation. Even well-meaning individuals aiming to keep a “human-in-the-loop” of any automated decision can fall prey to this well-documented phenomenon, trusting the technology more than it deserves to be trusted. Champions for current GenAI technologies often do acknowledge limitations within the existing landscape of tools, like GenAI’s tendency to …

Ski Resorts And Rural Energy Resiliency: How Colorado’S Ski Industry Could Help Reduce Energy Vulnerability In Rural Mountain Communities, Jonathan Skule

Colorado Environmental Law Journal

No abstract provided.

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

Meta-Interpretive Questions And The Aims Of Theories Of Interpretation: Beyond The Remedial Answer, Francisco J. Urbina

Journal Articles

This invited Response to Bill Watson’s “What Are We Debating When We Debate Legal Interpretation?” examines the point and purpose of interpretive theories. Watson argues that theories of interpretation are about how legal actors should exercise discretion when the law runs out. The Response builds on Watson’s sophisticated conceptual framework to explain that interpretive theories can be about at least two other topics. They can be about the most normatively appealing way of operating with sources—whether this tracks legal content or not—and they can be about which criteria for identifying something as law the legal community should adopt.

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …