Digital Commons Network^™

Legal Stories Without Villains, Alison Peck

Law Faculty Scholarship

Lawyers have always been storytellers, and cognitive science is increasingly demonstrating that human beings are wired to learn through story. But legal stories may have a dark side if, as theorists have recently suggested, stories motivate pro-social action by reinforcing in-group identification and out-group hatred. In an increasingly divided polity, are we doomed to stories that drive us toward social disintegration? A solution to the legal storyteller’s dilemma may be found in an ancient source: Aristotle’s Poetics. By crafting legal stories that track the elements of the Tragedy as described by Aristotle and adapted by modern storytellers from Broadway …

The Intertemporal Law Doctrine’S Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

All Papers

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

Faculty Publications

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

At The Intersection Of Property And Disaster Recovery, Jeanne Ortiz-Ortiz

Faculty Publications

(Excerpt)

When disaster strikes, communities rally to meet urgent, short-term needs—food, shelter, and medical care that keep people alive and safe in the immediate aftermath. For days, we see images of flooded streets, emergency shelters, and calls to support fundraising campaigns in the media cycle. Long-term recovery after a disaster often depends on something less visible: the ability of people, especially those experiencing economic insecurity, to rebuild or return to stable, functional homes.

The outcome of this largely depends on whether families can navigate and access assistance programs like those offered by the Federal Emergency Management Agency (FEMA). Can you …

Immigration Adjudication, Judicial Review, And The Uneven Incorporation Of Administrative Law Norms, John Harland Giammatteo

Journal Articles

This article examines the interaction between immigration law and administrative law. Scholars and courts regularly treat immigration as outside of, or exceptional to, the normal operation of administrative law and its norms of judicial review. Yet in the past decade, the Roberts Court has radically reshaped administrative law. This broader administrative law project has largely emphasized the primacy of the federal courts and judicial review, enlarging the putative rights of regulated parties, at the cost of agency power. Within that project, immigration adjudication is a frequent conversation partner. Immigration adjudication is used to undermine the administrative state’s claim to policymaking …

Blurred Lines: Did Booker Change Federal Sentencing Outcomes?, Hugh Mundy

UIC Law Open Access Faculty Scholarship

No abstract provided.

Fear, Delay, And Preventable Death: Rethinking Wyoming's Legislative Framework To Reduce Barriers In Overdose Emergency Reporting, Shoshana Sangros

Wyoming Law Review

This Comment asks whether Wyoming’s current immunity framework for reporting overdoses truly reduces delays in emergency treatment when distance, weather, and limited emergency medical service (EMS) capacity already regularly extend response times. It proposes that by amending two Wyoming statutes and funding statewide education, the goal of reducing barriers to calling 9-1-1 to report overdoses can be better achieved, and residents better protected. To support these proposed changes, Part II provides a concise account of relevant Wyoming statutory protections. Part III proposes specific amendments that would address the on-the-ground challenges of the Wyoming emergency response system. These adjustments will utilize …

The Bigotry Of The Future: Ai Recruitment Tools & Hiring Discrimination Law, Lily Manshel

City University of New York Law Review

As one-click applications and a competitive job market result in hundreds of applicants per listing, hiring tools that use Artificial Intelligence (“AI”) promise recruiters a convenient way to sort through the crowd and find the “perfect” candidate, all while eliminating human bias. These tools—which include resume screeners, gamified assessments and personality tests, and video interviewing software—are proliferating so rapidly that their ubiquity is positioned as inevitable by both the software companies that produce them and the employers who use them. However, the use of these automated decision-making tools creates a paradox under existing antidiscrimination law: the systems clearly perpetuate and …

Accounting For Spatial Effects And Social Norms In Making Algorithmic Law: Insights From And Applications In Urban Mobility, Jingkang Gao

Journal of Law and Mobility

This Article examines a prominent idea in the law and technology literature: that algorithms and big data can be used to make law dynamic and personalized. As currently envisioned by legal scholars, “algorithmic law” entails laws that adjust in real time to changing conditions and vary across individuals, improving welfare by tailoring legal rules and standards to personal characteristics.

This Article argues that this vision of algorithmic law is incomplete—and often counterproductive. Existing proposals treat personalization as a function of individual attributes alone, overlooking the fact that effects of individual behavior are fundamentally interactive. Individual behavior is shaped by spatial …

A Golden Age For Us . . . Or For The Airlines? Ensuring Robust Federal Consumer Protections To Make Flying Great Again For Everyone, David S. Nahmias, Julian Sanghvi

Journal of Law and Mobility

Flying today is not meaningfully better for passengers than it was twenty years ago—and the airlines are largely to blame. Airlines leverage opaque pricing practices and junk fees to extract greater revenue from passengers, while the quality of air travel has deteriorated. Despite its mandate to protect the flying public and the air travel market from deceptive and anticompetitive practices, the Department of Transportation has been largely captured—adopting industry-favorable regulations and procedures while cutting commonsense consumer protections. This Essay examines the airlines’ coordinated campaign to circumvent and dismantle consumer protections, and how the industry have largely captured the federal agency …

Yars 19(33)

Yearbook of Antitrust and Regulatory Studies

YARS Vol. 19(33)

Contrasting Visions Of Age: Manifestations Of Ageism In Law, Art, And Health Care, Janet L. Dolgin

Health Matrix: The Journal of Law-Medicine

Ageism has befuddled the law’s attempts at remediation. Each “ism” (e.g., sexism, racism) differs from the others. Ageism, however, differs fundamentally from other “isms.” That difference explains the law’s failure to limit it. This article describes the difference, and it explains why that difference has rendered ageism resistant to legal remedies. Legal scholars and gerontologists have asked why the law’s efforts to limit the bias, stigma and discrimination that stem from ageism have largely failed. A remarkable framework for responding to that query derive from literary and artistic depictions of old people over time.

This article has identified shifting visions …

Predictive Health Discrimination: Cabining Ai Risk Assessment To Protect Worker Data, Elizabeth A. Brown

Health Matrix: The Journal of Law-Medicine

Predictive health data monitoring is rapidly expanding in workplaces, outpacing legal protections and exposing workers to new risks. Employers may now use analytics powered by artificial intelligence (“AI”) to identify which workers are most likely to develop future disabilities, raising the threat that these workers will face limited opportunities and discrimination before such action is clearly illegal.

Employers are accelerating predictive biometric surveillance, fueled by financial incentives like reduced health insurance costs and higher productivity, accommodations for older workers, and the ubiquity of predictive analytics in general. Current federal and state laws offer scant protection against discrimination based on predicted …

Mitochondrial Replacement Techniques For Infertility: How Legal Barriers Harm Patients And Children, Kerry Lynn Macintosh

Health Matrix: The Journal of Law-Medicine

Recent studies show that mitochondrial replacement techniques (“MRTs”) can help women with poor egg quality and repeated IVF failures get pregnant and deliver healthy children. Unfortunately, infertile Americans can derive no hope from this promising development.

The U.S. Food and Drug Administration (“FDA”) claims jurisdiction over novel assisted reproductive technologies. Fertility clinics and doctors who want to provide MRTs must submit an investigational new drug (“IND”) application to the FDA and wait for approval before proceeding with clinical trials. However, for the past decade, Congress has enacted an annual appropriations rider that precludes the FDA from acknowledging receipt of applications …

Community Influence In Streamlined Siting Regimes, Danielle Stokes, Uma Outka

Law Faculty Publications

Siting energy infrastructure has long been contentious, but growing local opposition to new energy projects in the U.S. – notably, wind and solar facilities – has drawn nationwide headlines. The legal context for energy siting varies across U.S. states, with local control being a dominant model. Against this backdrop, several states have adopted legislation to facilitate renewable energy siting by adjusting decisional authority between the local and state level.

This article evaluates these reforms at a time marked by change and uncertainty within the energy sector. Bipartisan support for infrastructure permitting reform generally has gained momentum in recent years, often …

Friday Night Rights: Ornamental Use In Collegiate Sports Merchandising, Isabel Mury Carvalho

Law Student Publications

University logos and insignias—once limited to athletic uniforms and official stationery—now appear on everything from high-end apparel to mass-produced mugs. Collegiate merchandising is a massive industry, generating $14.8 billion in 2023 alone. Infringers have followed close behind, producing look-alike goods that blur the line between authorized merchandise and unauthorized imitation. ...

A Terrorist In Death Only: How The Death Penalty Fills The Gap In Federal Terrorism Law, Caroline Alden Mcbride

Law Student Publications

In the absence of a federal statute criminalizing domestic terrorism, the United States turned to an unlikely proxy: the death penalty. This Comment argues that capital punishment is used to define domestic terrorism, particularly when statutory tools cannot capture white supremacist attacks. Although former President Biden commuted most federal death sentences to life imprisonment without parole, three individuals whose attacks met the legal definition of domestic terrorism were excluded from clemency. Examining several cases from Timothy McVeigh to Luigi Mangione reveals a trend of defendants whose crimes meet the legal definition of domestic terrorism receiving the death penalty, even when …

Under Pressure: Delaware, Corporate America, And Certified Questions, Derek S. Hubbard

Law Student Publications

With an advanced corporate code and a highly respected Court of Chancery, Delaware has long been America’s home for big business. But its status may be in jeopardy. Within the past year, the Court of Chancery has shattered two market practices and reminded stakeholders of the uncertain nature of fiduciary duties. Corporations have responded. Termed “DExit,” corporations are leaving Delaware for competing jurisdictions, namely Texas and Nevada. As corporations leave Delaware, so do their tax dollars. Delaware’s fiscal stability is directly tied to the continued presence of corporate charters in Delaware. Delaware residents enjoy a low tax burden, with the …

Insuring Algorithmic Liability: A Response To Artificial Intelligence, Judicial Evolution, And Insurance, Daniel Schwarcz

Articles

No abstract provided.

The Civil Justice Business, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Our civil justice system rests on certain foundational commitments: to make rights real for those the law protects, regardless of their station; to hold wrongdoers accountable, no matter their power; and to deter misconduct in a landscape that depends, above all, on private enforcement for the regulation of wrongdoing. We put great faith in these values.

Civil justice, for all its lofty goals, is also a business. Attorneys and liability insurers have long had their own economic stakes in litigation, under their own professional and regulatory norms. But now, a new litigation finance industry has arisen: outside investors provide equity …

Women’S Exposure To Incel Content, Perceived Safety, And Gender-Based Violence Risk In The United States, Deja Bledsoe

Criminology & Criminal Justice Theses

The rapid proliferation of incel-related content across digital platforms has raised concerns about online misogyny and its potential impact on women’s perceived safety. However, less is known about how exposure to such content shapes women’s perceptions of risk and emotional responses in everyday digital environments. This study examines the relationship between exposure to incel-related content and women’s perceived risk of gender-based violence and safety-related anxiety. Guided by strain theory, social control theory, hegemonic masculinity, and intersectionality, the study employs an anonymous cross-sectional online survey of women aged 18 and older. Quantitative analyses were conducted to assess whether exposure to incel-related …

Inconsistencies At The International Trade Commission And The United States Federal District Courts, Christine Dedoulis

Catholic University Journal of Law and Technology

This article will analyze Section 337 of the Tariff Act of 1930, under which the International Trade Commission (Commission) conducts unfair import investigations, as it applies to patent infringement cases. Further, this article will explore different outcomes regarding parallel litigation at the Commission and District Courts, including what remedies are available and the effect of duplicative and inconsistent determinations on the patentee. In light of these comparisons, this article will provide suggestions on how to minimize inconsistencies between the Commission and District Courts, with particular emphasis on determining if some middle ground exists and if a classification system could be …

Modern Privacy, Outdated Doctrine: A Four-Factor Approach To Fourth Amendment Analysis, Ilinca Slabu

Washington Law Review Online

The Fourth Amendment, which protects individuals against unwarranted searches and seizures, has been at the center of many questions recently due to advancements in technology. Technology has evolved to a point where it is no longer necessary to enter someone’s physical space to know what is happening inside a home. This has led to many ambiguities between what is private and public, and what technology usage constitutes a search under the Fourth Amendment. We have reached a critical point that requires a clear test to determine this question to protect the privacy of individuals.

This Comment proposes a new framework …

Transgender Women In Sports: A Test Case For State Legislative Protections, Payal Doctor

City University of New York Law Review

For decades, transgender people have been fighting for the right to participate in sports leagues consistent with their gender identity. Much of this fight has played out on the federal stage, but recently both the federal government and federal courts have become hostile to transgender rights broadly, and transgender rights in sports in particular. This Comment examines an alternate but increasingly promising avenue for the vindication of transgender rights in sports: state law. Using a New York lawsuit brought by a women’s roller derby team, Long Island Roller Rebels v. County of Nassau, as a case study, this Comment …

Judging Art: Copyright, Creativity, And The Meaning Of Art In The Eyes Of The Law, Scott J. Sholder

Marquette Intellectual Property & Innovation Law Review

This Article examines how copyright law defines creativity and authorship in an era of rapidly evolving artistic expression, with particular emphasis on generative artificial intelligence. Tracing the development of U.S. copyright law from its constitutional foundations through modern case law, the author explores the legal standards governing originality, fixation, human authorship, and the idea-expression dichotomy. The Article analyzes how these principles have been applied to both traditional and emerging forms of art, including conceptual, performance, appropriation, digital, and AI-generated works. It also examines recent guidance from the U.S. Copyright Office and evolving judicial decisions addressing the copyrightability of AI-assisted and …

Police Use Of Force: Barnes V. Felix And Moving Beyond The Moment Of Threat, Rebecca Aitchison

Roger Williams University Law Review

No abstract provided.

The Boundaries Of Corporate Politicking, Ashlee A. Paxton-Turner

Law Faculty Publications

As corporations become red brands and blue brands (whether purposely or accidentally), they are participating in the American political landscape in ways distinct from lobbying and political spending. Specifically, corporations are increasingly making statements or launching ad campaigns that appear to support one side (or the other) of a political or social debate. This Article refers to that activity as “corporate politicking.” Unlike political spending or lobbying, corporate politicking lacks a legal definition and is far less regulated—whether internally or externally.

This Article’s central contribution is an administrable framework to demarcate corporate politicking from other corporate activities and decisions. It …

What To Do About The Decay Of The Conventions Of The Canadian Constitution, Léonid Sirota

Dalhousie Law Journal

Constitutional conventions are central to the operation of the Canadian constitution. Yet because they are not legislated rules, their coming into being and disappearance can be subject to considerable uncertainty. Worse, it appears that conventions can disappear or be replaced inadvertently, without anyone fully appreciating that this is happening. This article describes this process in relation to three conventions of the Canadian constitution: the one regulating the appointment of the Chief Justice of Canada, the convention of civil service neutrality, and the convention governing the choice of Prime Minister in a hung Parliament. It argues that these conventions are being …

Widening The Avenues For Rehabilitation And Release In The Criminal Legal System Through A Revision Of The First Step Act's Safety Valve Provision In Response To Pulsifer, Drew Svensson

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Supreme Court's decision in Pulsifer v. United States severely undermines the First Step Act by restrictively interpreting the safety valve provision, thereby limiting judicial discretion and increasing incarceration. To remedy this, the note proposes legislative revisions to the safety valve to expand eligibility for relief from mandatory minimums while maintaining public safety.

Hidden In Code: Unmasking Al Bias In Hiring, Katie Rubin

Cardozo Journal of Equal Rights & Social Justice

The note argues that while AI-driven hiring tools offer efficiency, they often automate and amplify systemic biases by relying on flawed historical data, creating a "hidden" form of discrimination. The analysis asserts that existing legal frameworks are inadequate for addressing these algorithmic harms, necessitating urgent federal reforms to ensure transparency and accountability.