Digital Commons Network^™

Shifting Structural Power: The Tech Energy Transition, Amy L. Stein

Indiana Law Journal

For the first time in over a decade, flat and stagnant electricity demand is expected to skyrocket. This increased demand is driven in large part by data centers that support artificial intelligence, crypto mining, and cloud computing. This is straining the electric grid, its stakeholders, and legal constructs in significant ways. Legal energy scholarship has spent the last fifteen years focused on the challenges of managing an electric grid transitioning to clean energy, in a world where privately owned electric utilities maintain powerful monopolies across the country. But there are no accounts of how the balance of power in this …

Interrogating The Facts Of The Case, Anna Roberts

Indiana Law Journal

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges.

Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the …

Misinformation And The Jury, Gustavo Ribeiro

Indiana Law Journal

This Article bridges critical gaps between the growing body of social science research on misinformation and the persistent challenges jurors face in evaluating potentially unreliable evidence in courtrooms. Misinformation—a pervasive issue undermining decision-making in democratic societies—mirrors the difficulties jurors encounter in distinguishing truth from falsehood amid compelling but unreliable evidence. The consequences of such challenges are dire: wrongful convictions, racial disparities, and the erosion of public trust in the legal system.

This Article is the first piece of legal scholarship to provide a comprehensive discussion of current research on the psychological mechanisms underlying susceptibility to misinformation—such as the illusory truth …

Rooted In Family Unity: Advocating For U.S. Citizen Children As Qualifying Relatives, Kevin J. Henriquez

University of the District of Columbia Law Review

This paper advocates for expanding the scope of unlawful presence waivers under § 212(a)(9)(B)(v) of the Immigration and Nationality Act (“INA”) to include U.S. citizen offspring as “qualifying relatives.” Under current law, the waiver only recognizes hardship to U.S. citizens or lawful permanent resident spouses or parents, excluding offsprings entirely despite their central role in family life. This exclusion undermines decades of immigration policy prioritizing family unity and creates devastating consequences for mixed-status families, particularly where U.S. citizens, minors, or adults depend on undocumented parents for financial, emotional, or medical support. This paper traces the statutory and legislative history of …

Silos, Gaps, And Bridges: A Call To Action For Law Schools To Facilitate Collaboration Across The Curriculum At The Dawn Of The Nextgen Bar, Elizabeth Usman, Andrea Gemignani

University of the District of Columbia Law Review

Now is a time for action. With the advent of the NextGen bar exam and the recent changes to the ABA accreditation standards for law schools, which both focus on valuing practical legal skills, law schools have a unique opportunity. By coordinating practical and doctrinal content across the curriculum, law schools can ensure that all graduates are proficient in fundamental lawyering skills and prepared for both the bar exam and practice success. ...

Part I of this article examines the foundations of American legal education from apprenticeships to the emergence of the case study method. It then explores the calls …

Criminalizing The Platform: Fosta-Sesta, Internet Governance, And The Erosion Of Online Speech, Fenny Gandhi

University of the District of Columbia Law Review

For decades, sex work operated in the shadows—negotiated in alleyways, mediated by third parties, and shaped by constant risk. Today, much of it happens online, where a screen can mean the difference between autonomy and danger. But, when the law pushes an industry underground, it does not eliminate it; rather, it reshapes how it operates, often in ways that increase vulnerability and reduce accountability. Sex work is the exchange of specific sexual services for money. The experiences of people who engage in sex work are diverse and influenced by social structures and economic realities. The internet provides consensual sex workers …

Beyond Hipaa: The Ftc’S Expanding Role In Digital Health Privacy Enforcement, Sandhya Srinivasa

SMU Science and Technology Law Review

Consumer digital health platforms have become an increasingly prominent feature of modern health care, collecting and storing sensitive health information directly from users. Yet most of these applications operate outside the scope of the Health Insurance Portability and Accountability Act (HIPAA), creating a significant regulatory gap in the protection of personal health data. This case note examines how the Federal Trade Commission (FTC) has stepped into that gap by leveraging Section 5 of the FTC Act and the Health Breach Notification Rule (HBNR) to police privacy and data security practices among non-HIPAA-covered digital health platforms. Focusing on three landmark enforcement …

But Who Are The Victims? Reassessing The 568 Higher Education Cartel, James V. Koch

Economics Faculty Publications

Thirty prestigious independent American institutions of higher education were at some time members of the 568 higher education group (often labeled a cartel). Seventeen of them were sued by the U.S. Government and representative students who alleged that their meetings and deliberations resulted in collusion that caused students to pay higher prices. Twelve of the seventeen institutions subsequently settled their cases and by 2024 collectively had paid $284 million to do so. However, an inspection of these institutions' pricing reveals that the median 568 Group institution lowered its average real net annual cost to its undergraduate students by 19.07% between …

When Planes Fall And People Die: An International And Domestic Overview Of Disaster In The Sky, Clayton Rainey

Journal of Air Law and Commerce

Commercial aviation disasters expose catastrophic breakdowns in engineering, regulatory oversight, corporate governance, and human systems. From the Boeing 737 MAX tragedies involving Lion Air Flight 610 and Ethiopian Airlines Flight 302 to the recent domestic crash of American Airlines Flight 5342, modern aviation disasters have become defining legal events that test the boundaries of product liability, federal preemption, sovereign immunity, and transnational treaty law. This Article examines how aviation mass-casualty events evolve into complex litigation involving aircraft manufacturers, airlines, regulatory agencies, and governmental entities, and how those legal frameworks differ in international versus domestic contexts.

Beyond legal doctrine, this Article …

Ai Can't Adlib: Theorizing An Improvisation Carveout In The Work For Hire Doctrine, Audrey Pope

IP Theory

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for …

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

Regulating Drone Delivery Networks, Ramsay Eyre

Journal of Law and Mobility

For over a decade, drone delivery has been heralded as the next frontier of commercial transportation and logistics. However, drone delivery companies have been unable to scale their operations. Part of the problem, from the perspective of the companies invested in drone delivery, were federal regulations that in effect prohibited drones from making deliveries. In 2025, following years of effort by industry and allies in Congress to create new rules governing drones, the second Trump Administration proposed a new set of drone regulations pursuant to the FAA Reauthorization Act of 2024. These rules are intended to significantly expand the number …

Scrappy Or Strategic? Law Firm Decision-Making In Light Of Executive Orders, Nancy B. Rapoport

Emory Business Law Review

Some of President Donald J. Trump’s early 2025 Executive Orders targeted specific law firms.  These Executive Orders have created a stir within our legal community.  Why did some firms fight those Executive Orders and other firms agree to quick settlements with the Trump administration?  In this article, I use some rudimentary concepts taken from game theory (as in, “I won’t use numbers or mathematical proofs,” so I expect actual game theorists to roll their eyes at my analysis) to analyze two games:  the game of “who within the firm will decide whether to fight or settle” and the game of …

Pharmaceutical-Telehealth Confederacies, Michelle Onder, Michael S. Sinha

Emory Business Law Review

Access to prescription pharmaceuticals has historically been controlled by a physician’s pen. As a result, pharmaceutical companies spend billions of dollars on advertising and promotion to mitigate this barrier: first and primarily, to physicians and other prescribers, and more recently, to the general public through direct-to-consumer advertising. The success of these promotional efforts can be seen in the greater prescribing of costly brand-name medicines, even in settings where lower-priced, comparably efficacious generic alternatives exist. Brand-name prescriptions now make up only 10% of all prescriptions written yet account for 88% of drug spending. Despite these substantial returns on investment, companies continue …

Fallen Unicorns, Xuan-Thao Nguyen

Emory Business Law Review

Tech unicorns, from healthcare, teledentistry, space, ecommerce, trucking logistics, pre-owned cars, wearables, design, image search, to home-building sectors, receive effusive praises and secure enviable venture capital investments. Very soon after garnering notoriety, these unicorns die. This Article theorizes why unicorns suddenly collapse shortly after they have achieved the mythical status of being the rare tech startups with valuations of one billion dollars or more. With an in-depth case study of fallen unicorns, the Article identifies and examines the reasons for their tragic deaths, offering a critique of the fear of missing out (FOMO), overfunding, and irrational exuberance investors heaped on …

The Internet At War: An Empirical And Legal Analysis Of Harmful Narratives On Social Media During Armed Conflict, Bailey Ulbricht, Allen Weiner

Michigan Technology Law Review

This Article empirically investigates the connection between harmful narratives on social media and violent acts perpetrated against persons protected under international humanitarian law (IHL) during armed conflict, and then examines the legal implications of such a relationship. First, examining comprehensive datasets from two inter-state armed conflicts (Russia-Ukraine and Armenia-Azerbaijan) as case studies, this Article documents patterns in Telegram data indicating that more violent acts are preceded by increases in harmful narratives than decreases in such content. This suggests that harmful narratives on social media platforms may plausibly contribute to the incidence of real-world violence committed against protected persons during armed …

The New Legal Tender Debate: Surveying State-Level Attempts To Regulate Central Bank Digital Currencies, Jacob Gerszten

Michigan Technology Law Review

This Note explores the growing wave of state-level legislation aimed at regulating Central Bank Digital Currencies (CBDCs). CBDCs, digital forms of central bank-issued money, have sparked intense political debates between proponents who see them as the logical next development in monetary technology and critics who perceive them as threats to privacy and financial system stability. Although a widely available CBDC appears unlikely without Congressional authorization, sixteen states have enacted laws designed to preempt its development, with more statutes likely to follow. These state statutes employ various legal mechanisms, including redefining terms in the Uniform Commercial Code, prohibiting CBDC-related payments to …

Rules Of The Road: Toward National Regulation Of Autonomous Vehicles, Adam Raviv

Journal of Law and Mobility

After decades of promise, self-driving cars are now becoming a meaningful reality on our roads. Yet not a single federal law or regulation governs autonomous vehicle operation in the United States—despite widespread agreement among policymakers, advocates, and industry stakeholders that a national safety framework is necessary. This article provides the first comprehensive legal analysis of what a federal safety regulation for autonomous vehicles can and should look like. It describes the current landscape of autonomous technology. It analyzes both the existing federal legal regime for vehicle safety regulation as well as state, local, and international standards that apply to autonomous …

A New Frontier For An International Right With No Frontiers: Freedom Of Expression & Generative Ai Outputs, Evelyn Aswad

Faculty Articles

As people debate whether the First Amendment protects generative AI outputs, we should also reflect on what the global freedom of expression standard has to say on the matter. This standard will affect discussions around national and regional regulatory approaches to generative AI throughout the world. In addition, global corporate responsibility standards call on companies to respect international human rights in their operations, which may also impact how businesses that provide generative AI services approach their activities.

I argue that the global free expression standard protects the rights of individuals to seek and receive information of any kind, including gen …

Dammed If You Do: Should The Government Be Liable For Hurricane Flooding And Other Natural Disasters?, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

When hurricanes, wildfires, and other natural disasters strike, government officials must make difficult decisions under time pressure and amidst uncertainty over how best to save lives and mitigate the resulting damage to private property. Sometimes landowners who do not second-guess the appropriateness of those decisions made in exigent circumstances nonetheless insist that the government should foot the bill for the resulting destruction. In a 2025 opinion (Ablan) and a 2022 decision (Milton), both involving flooding damage resulting from Hurricane Harvey, the Federal Circuit articulated an expansive vision of government liability under the Takings Clause that can be squared with neither …

The Constitution Of Conversations: The Enduring Legacy Of Sandra Day O'Connor, Derek A. Webb

Scholarly Articles

Soon after Justice O'Connor's passing in December 2023, commentators and court watchers across the ideological spectrum questioned whether anything in the legacy of the first woman to serve on the Supreme Court— once called “the most powerful woman in Washington, D.C.”—remained intact.

Drawing upon speeches and interviews she gave over her entire forty-year public career, I argue that O’Connor’s deepest and most enduring contribution was a subtle, compelling, interconnected, and yet today largely countercultural vision of the Constitution as a site of multiple conversations, a “Constitution of Conversations,” that took place variously within institutions, across institutions, and across time. More …

Authorship Nonsense, Jessica Litman

Articles

Copyright law’s primary device for promoting progress is to bestow rights on the authors of works. Rights vest automatically and last for a very long time. Authors’ choices to retain, license, or transfer those rights fuel opportunities to communicate the works to their audiences. The copyright system’s mechanisms for determining who authored works (and therefore automatically obtained copyright rights) should be both accurate and reliable, since misidentifications will undermine the law’s working as intended.

This article examines authors’ creation of works and copyright law’s handling of authorship disputes. Many works result from creative collaboration. Although the copyright statute incorporates mechanisms …

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

Reverse Discrimination And Other Racial Projects, Osamudia James

Faculty Publications

The U.S. Supreme Court’s decision in Ames v. Ohio Department of Youth Services abandoned historical context when assessing discrimination allegations, thus clearing remaining obstacles to reverse discrimination lawsuits. Reverse discrimination claims challenge equal protection jurisprudence, presenting whites as victims of racial subordination in claims that can be difficult to adjudicate if historical context is no longer a litmus test. Reverse discrimination claims also function as a white racial project—an attempt to represent and explain white racial identity in ways that redistribute societal resources to reflect a racial hierarchy that still benefits whites. A white racial project, however, is not unique. …

"For Their Benefit": The Lost History Of Parental Consent And Minors' Rights, Naomi Cahn, Maxine Eichner, Mary Ziegler

Faculty Publications

The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.

Drawing on archival material housed at six different universities, we make sense …

Open Secrets, Robin C. Feldman, Vaughn Goehrig

Faculty Scholarship

Patents and trade secrets were never intended to meet, but in the world of biologic drugs, they've become as thick as thieves. Patent law's disclosure requirement has demanded far too little of biologics manufacturers-allowing them to keep vital manufacturing details under trade secret lock and key. This intellectual property patchwork has been devastating for drug affordability: Because the most critical manufacturing information remains hidden, makers of follow-on biologics (called biosimilars) are often stuck reinventing the wheel, even after the original patents have expired.

This Article makes two principal contributions to illuminating this problem. First, it presents, for the first time …

People's Upr Written Record, Sarah Dávila A., Lauren E. Bartlett

Faculty White Papers

No abstract provided.

Transforming Police Officers To Community Peace Officers: A Scholarly Personal Narrative Addressing The Mental And Moral Conflicts In Community Engagement & Law Enforcement, London S. R. Mcbride

Doctor of Education

This dissertation explores the transformation of police officers into community peace officers by examining the mental and moral conflicts inherent in community engagement and law enforcement. Using scholarly personal narrative (SPN) as my methodology, the study integrates my lived experience as a Black law enforcement officer with broader discussions on race, power, leadership, and institutional culture. Grounded in critical race theory, social justice leadership, and trauma theory, the research investigates how systemic inequities, organizational resistance, and historical trauma influence policing practices and officer identity. The literature review highlights the legacy of racialized policing, the psychological toll of law enforcement work, …

The Structural Law Of Data, Bridget A. Fahey, Raul Castro Fernandez

University of Chicago Law Review

The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article is about how the law of structure regulates decision-making about, and popular control over, an increasingly potent form of power: the power government obtains from data. The government has always relied on information to meet its objectives, but the digitization of information over the last half century has yielded a distinctive form of governmental power—one that is liquid, transferable, minable, dynamic, and vital to virtually all governmental activity today.

But despite the significant literature on private-sector “data governance,” public …

Incarceration As Sexualized Violence, Leigh S. Goodmark

Faculty Scholarship

Sexual violence—rape, sexual assault, strip and body cavity searches, surveillance, and reproductive abuse—is a regular occurrence in women’s prisons. Some of that violence is clearly illegal; some occupies a legally gray middle ground; and some is considered essential to the operation of the prison system. All of it, however, could violate the law if the victims were not incarcerated. Sexual violence is so pervasive within women’s prisons that incarceration can only be understood as a form of sexualized violence. Given the certainty that people incarcerated in women’s prisons will experience some form of sexual abuse, continued incarceration can only be …