Digital Commons Network^™

The Illusion Of Justice: How Criminalizing Status Undermines The Rule Of Law, Luz M. Payán

Immigration Law Blog

In May of 2025, United States Senator Cornyn introduced the Justice for American Victims of Illegal Aliens Act. The Act creates an additional aggravating factor in determining whether to impose the death sentence. The aggravating factor would only be applicable when a noncitizen is found guilty of killing a United States citizen. This Article first argues that this Act would create grave constitutional concerns and severely undermine the rule of law. Next, this Article urges that, in order to truly promote public safety, our government should focus on policies meant to empower communities.

Reconceiving Safety Regulation For Ai And Ml Medical Software, Barbara J. Evans, Eric S. Rosenthal, Azra Bihorac

Vanderbilt Journal of Entertainment & Technology Law

This article explores the challenges of regulating AI and ML clinical decision support tools intended to assist trained health care professionals in delivering clinical care. Two old, twentieth-century regulatory models have dominated discussions of medical AI policy since 2013. Thinking inside these old regulatory boxes has not produced effective regulatory solutions to address the novel risks AI poses in clinical care. The first regulatory box treats software as a medical device, which tasks medical device regulators with making software safe but neglects the crucial roles physicians, nurses, administrators, medical practice regulators, and other health oversight bodies must also play to …

Drug Scheduling As Institutional Design, Matthew B. Lawrence, David E. Pozen

Faculty Scholarship

Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call …

Policing Agency Data Trusts, Barry Friedman

Northwestern University Law Review

Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

This practice of universal data collection presents a conundrum. As many …

When The Rules Burn: A New Approach To Governmental Discretion In Firefighting Operations, Nathan Li

University of Chicago Legal Forum

The Federal Tort Claims Act (FTCA) broadly waives the federal government’s sovereign immunity, but the discretionary function exception (DFE) preserves immunity for acts grounded in judgment or choice. A doctrinal tension arises from the Supreme Court’s instruction in Berkovitz v. United States that the DFE does not apply when a directive “specifically prescribes a course of action.” In high stakes contexts such as wildfire suppression, government actors sometimes deviate from such mandatory directives to make split-second, policy-driven decisions. Yet, in most cases, courts still treat these violations as discretionary acts protected by the DFE, often without explaining how this outcome …

“I Like My Eighteenth Century Fresh”: Geofence Warrants, General Warrants, And The Evolving Fourth Amendment, Alexa M. Mascaró

University of Miami Law Review

Almost 250 years ago, our Founding Fathers fought to create a nation free from the confines of British imperial rule. Outrage over governmental intrusions enabled by suspicionless general warrants and writs of assistance galvanized an American polity determined to prevent the abuses that had come to define colonial life. The Fourth Amendment was enacted as a response to executive overreach, and it was deeply informed by the fraught history that led to its adoption—a history that is still used by courts today to define constitutional protections.

In the digital age, the rapid speed of technological innovation has created a precarious …

Roads To Regulation: A Discussion On Non-State Armed Groups' International Health Law Obligations, Eric Fogle

Journal of Law and Health

Non-state actors can look and operate like governments, yet without formal statehood, they exist in a regulatory gray area. Non state actors play an increasingly influential role in international law, yet they remain largely unregulated. This paper examines non-state actors as a class, with particular attention to non-State armed groups (NSAGs), and analyzes the regulatory gap they occupy specifically within international health law. The paper first surveys the rise, diversity, authority, and legitimacy of non-state actors in relation to States, highlighting their growing involvement in governance functions traditionally reserved for States. This paper then introduces the World Health Organization (WHO) …

Patent Pending: How The Current Patent Utility Requirement Hinders Biotechnological Innovation, Madison Drlik

Journal of Law and Health

The legal system is always playing catch up to adapt to new legal landscapes, doctrines, and technology; however, patent law needs help to compete with biotechnological research in the race towards innovation. Biotechnological research in the realm of human health and medicine often involves the use of therapeutic drugs. The field of healthcare biotechnology takes biological systems and processes and generates novel, creative solutions to a number of human health conditions. However, the translation process for a new drug, therapy, or process is long and expensive which requires investors to help the researchers and scientists move their creations from inception …

Rogers V. State Of Nevada, 142 Nev. Adv. Op. 3 (Jan. 15, 2026), Luis Dorantes

Nevada Supreme Court Summaries

NEITHER NRS 176.055 NOR NRS 178.463 PERMITS CREDITING TIME PREVIOUSLY SERVED IN PRISON ON VACATED CRIMINAL CONVICTIONS AGAINST THE LENGTH OF A CIVIL COMMITMENT.

Vigilante Violence, The Rise Of The New Right, And The Persistence Of The Texas Farmworkers, 1975–1980, Brent M. S. Campney, Tim Bowman

History Faculty Publications

This study charts the ineffective vigilante violence perpetrated by growers in the Rio Grande Valley of Texas to suppress farmworker activism from the mid-to-late 1970s and their abrupt shift in tactics with a 1980 strike in Hereford, Texas, toward the adoption of strictly nonviolent and tediously legalistic new methods associated with the neoconservative backlash. It does so in two major sections. In the first, grower violence is chronicled in detail that underscores both its rage and ineffectiveness. The second section shows how the New Right usurped the longstanding usage of physical violence against ethnic Mexicans in Texas, prompting conservatives to …

Officers On Patrol: Perspectives Of An Arrest On Past And Present Law Enforcement Officers, Shanee N. Ellington

Doctoral Dissertations and Projects

While attempting to apprehend suspects, police officers must contend with complex obstacles arising from the arrest's legal, ethical, and sociopolitical context. Officers had to follow their department’s guidelines while also developing legal procedures when carrying out an arrest. The study focused on how an officer’s perception of arrest decisions and procedures encapsulated challenges and ethical dilemmas. Through a semi-structured interview with twenty respondents, this research explored the implications of arresting behaviors on officers’ professional identity formation and development. The data analysis followed the grounded theory approach, which focused on identifying differences and similarities between former and current officers over time. …

The Evidence Machine: Rethinking Admissibility And Privacy In India's Ai Surveillance State, Samyukta Ramaswamy

Indian Journal of Law and Technology

The proliferation of artificial intelligence (‘AI’) surveillance technologies that utilise machine learning (‘ML’) capabilities to gather and process information to derive insights about individuals has transformed the surveillance landscape by enabling governments and private entities to engage in increasingly pervasive monitoring and data-driven profiling. In India, this transformation is compounded by the presence of executive-controlled surveillance mechanisms under the legal framework of the Telecommunications Act 2023, the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024, and the Digital Personal Data Protection Act 2023, amongst others, which authorises wide-ranging data interception and dragnet surveillance while exempting government agencies …

Note From The Editor

Alaska Law Review

No abstract provided.

Circumscribing Alaskan Law Enforcement’S Access To Pretrial Electronic Monitoring Location Data, Rosa Gibson

Alaska Law Review

In Alaska, pretrial detainees comprise much of the state’s prison population. Electronic monitoring—made possible by recent bail reforms—provides a pathway to pretrial release for those who cannot afford to pay bail. Using GPS data, the Pretrial Enforcement Division can monitor the location of a releasee’s ankle monitor for supervisory purposes. But when law enforcement seeks warrantless access to that data to investigate crimes other than the one for which a releasee is awaiting trial, that intrusion raises concerns under Alaska’s constitutional right to privacy. This Note argues that the Alaska judiciary, which is best positioned to guard the privacy of …

A Case For Judge-Made Law For The American Jurists From An English Perspective—Drawing Example From The Human Rights Act 1998, Samuel Kuo

Georgia Journal of International & Comparative Law

Many authors frown upon judge-made law as an inappropriate and ghastly exercise of judicial activism in American jurisprudence. This, nevertheless, is not the view of English jurisprudence. This Comment proposes instead that the American legal audience should embrace the benefits of judge-made law as a means of correcting the rigidity and inadequacies of the legislature. It does so by drawing an example from the recent debates over whether the Human Rights Act 1998 should be amended or repealed by the legislature, which is comprised of the members of parliament sitting in the House of Commons. By drawing the example of …

The Right To A Fair Trial In International Law And African Experiences, John Mukum Mbaku

Georgia Journal of International & Comparative Law

A country’s system for the administration of justice significantly impacts the rights and lives of its inhabitants, which may include citizens, nationals, and temporary residents (e.g., refugees, asylum seekers, religious pilgrims, and other travelers in transit). A robust and fair system for the administration of justice is an important element of the rule of law and serves as a guard against impunity in general and the abuse of human rights and fundamental freedoms in particular. Such a robust system for the administration of justice is especially important for the protection of the rights of vulnerable groups (e.g., women and girls, …

The Taiwanese Way To Ai Governance: Draft Basic Law On Artificial Intelligence And Future Regulatory Strategies

Washington International Law Journal

Abstract: Despite Taiwan’s significant contributions to the global artificial intelligence (AI) ecosystem, its role remains underexamined in international AI governance discourse. This Article addresses this gap by analyzing Taiwan’s emerging AI regulatory framework, with particular emphasis on the Draft Basic Law on Artificial Intelligence (the “Draft AI Law”). Situating Taiwan’s approach within the broader global regulatory landscape, the Article compares the Draft AI Law with key international models, including the European Union’s AI Act and the United States’ NIST AI Risk Management Framework, while also drawing on regulatory developments in Japan and South Korea. Rather than providing a clause-by-clause analysis, …

Time As A Constitutional Constraint: Resolving The Circuit Split On Prolonged Fourth Amendment, Ian Seabrooks

Washington Law Review Online

The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. …

Better Off In The Big Leagues: Why Juveniles Who Get Direct Filed Have More Rights When Analyzed From A Constitutional Standpoint, Lexi Kest

Nova Law Review

No abstract provided.

Safety Valves In Charter Analysis:A Quick Fix Rather Than A Structural Solution, Jamie Chai Yun Liew

The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference

A safety valve is a flap, lid or device that acts as a fail-safe. For those unfortunate to have experienced backflow into your home, a safety valve installed in a sewer line permits wastewater to exit while blocking unwanted backflow. It is a reliable and indispensable tool in this context. The legal world has adopted this term in constitutional analyses. This paper examines whether legal safety valves do provide relief. First, the paper provides an overview of how safety valves have been installed in the Supreme Court of Canada’s legal analyses. Then the paper provides a sober discussion of how …

Always Elsewhere: Constitutional Rights In Ccr, Audrey Macklin, Josh Blum

The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference

The Canada-United States Safe Third Country Agreement (“STCA”) requires refugee claimants travelling overland to seek protection in the first country of arrival as between Canada and the United States. The Federal Court determined that the United States’ detention practices did not comply with minimum human rights standards, such that Canada breached section 7 obligations to the applicant refugee claimants by deflecting them back to the United States. The Federal Court of Appeal overturned the decision, and the Supreme Court of Canada dismissed the appeal. The authors review the CCR judgment and present it as a cautionary tale about how a …

A Necessary Realignment:Section 7 Engagement In Canadian Council For Refugees, Jacqueline Swaisland, Alison Imrie

The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference

This paper explains how the Supreme Court of Canada’s decision in Canadian Council for Refugees repudiates decades of section 7 jurisprudence in the immigration law context and mandates that it be realigned with the section 7 jurisprudence outside of it. The paper sets out how Courts in the immigration context continue to apply decades-old jurisprudence which unilaterally declared that section 7 cannot be engaged by a person’s removal from Canada. It also explains how the Courts incorporated a remoteness barrier into the causation analysis which further prevented section 7 scrutiny of government action in the immigration context in all but …

A New Justification For Section 12 Hypotheticals Andtwo Rules For Constructing Them, Lisa Kerr, Michael Perlin

The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference

The use of the reasonable hypothetical device in the section 12 context has been a source of unceasing controversy. The Supreme Court has tried to lay the debate to rest; but we argue that there are convincing and practical reasons for the use of hypotheticals which the Court could do more to explain, as a way to persuade skeptics. These reasons are tied to the realities of the criminal justice system and how mandatory penalties can shape penal outcomes in covert ways, apart from, and in addition to, delivering cruel and unusual punishment to individuals. Along with articulating this new …

Equality Rights And The Canada-U.S. Safe Third Country Agreement, Sharryn J. Aiken, Colin Grey

The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference

Under the Canada-United States Safe Third Country Agreement (“STCA”), Canadian immigration officials return refugee protection claimants arriving from the United States to have their claims determined in that country, and vice versa. This paper tries to tease out the equality rights arguments under section 15 of the Canadian Charter of Rights and Freedoms likely to be advanced in an ongoing constitutional challenge to the STCA and its implementing regulations. The paper briefly explores why equality rights challenges have often been given short shrift in cases involving “migration control”. We argue such cursory treatment is inappropriate in the challenge to the …

B.T. And B.K.Cs. V. Hungary: Separating Roma Children From Their Mothers Before Births, Sara Apostol

Human Rights Brief

In June of 2025, the European Court of Human Rights (ECtHR) ruled in favor of a Roma mother, B.T., and her son after bringing a lawsuit against the Hungarian government for wrongfully violating their right to family life. The Hungarian government ordered the placement of B.T.’s unborn child into State care based on insufficient and dubious evidence used to justify such state action. This case focused on the prejudiced system that places Roma children into the State’s guardianship immediately after birth without evidence of imminent harm or other valid justification. Rather, it is based on the child’s ethnic and socio-economic …

The New Neccesity, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

According to the U.S. Supreme Court, cities are free to criminalize homelessness. The 2024 case City of Grants Pass v. Johnson is the most important homelessness case in decades and was a significant blow to advocates for the unhoused. The conservative majority rejected the idea that city ordinances criminalizing sleeping in public amounted to cruel and unusual punishment insofar as they penalized status. There is no sidestepping the loss. But within the faint glow of the embers of the oral argument and of the decision itself, there is the possibility that a new understanding of necessity, supported by the same …

The Anonymous Officer, Shawn E. Fields

Faculty Scholarship

(Forthcoming 2026) Masked, plainclothes immigration agents in unmarked vans have terrorized communities in Chicago, Los Angeles, Minneapolis, and beyond. The indiscriminate violence committed by federal officers who at times appear indistinguishable from paramilitary units has forced immigrants into hiding and left lawmakers scrambling to address a growing and largely legal anonymity crisis in law enforcement. This Article explores the undertheorized implications of anonymous law enforcement, situating the rise of masked policing within a larger project of democratic retrogression and executive aggrandizement. Anonymity in policing and immigration enforcement frustrates core democratic norms of transparency, accountability, and legitimacy, providing the opacity needed …

Trump's War On Diversity, Equity, And Inclusion, Nancy C. Marcus

Faculty Scholarship

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine …

Undermining Discretion: The Selective Attacks On Progressive Prosecutors, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

Prosecutors are the most powerful officials in the criminal legal system. They decide whether to bring criminal charges and what those criminal charges should be. These decisions are totally within their discretion. The U.S. Supreme Court has consistently protected the power and discretion of prosecutors in making these decisions, and legal challenges to the exercise of prosecutorial discretion have been largely unsuccessful.

In recent years, a growing number of individuals have successfully run for chief prosecutor on platforms of reducing the prison and jail populations, consistent with public safety. They pledged to use their power and discretion to implement policies …

Deepseek And The First Amendment: Assessing The Eighth Circuit And Missouri’S Legal Impact On Open-Source Ai, Alvin Hoi-Chun Hung

Missouri Law Review

The rise of open-source generative artificial intelligence (AI) models presents new challenges for First Amendment jurisprudence. Although computer code has been recognized as protected speech, the emergent nature of AI-generated outputs complicates the boundary between human expression and machine autonomy. This Article examines the constitutional and regulatory implications of compelled disclosures and content filtering, situating the analysis within the precedent of the Eighth Circuit Court of Appeals and recent actions by the Missouri Attorney General targeting algorithmic opacity under consumer protection law. It further examines the limitations of Section 230 of the Communications Decency Act in addressing liability for autonomous …