Digital Commons Network^™

Ncaa Videogames: How The Litigation That Cancelled Ncaa Football Has Led To Its Comeback, Peter Shah

Student Works

No abstract provided.

2025-2026, Benjamin N. Cardozo School Of Law

Student Handbooks

No abstract provided.

Sunshine Laws Cast A Dark Shadow On Democracy, Elizabeth Stephani

Wyoming Law Review

A group of people keenly aware of government corruption and the consequences of concentrated power created the United States Constitution. Flowing from the Founders’ fear of another King, the U.S. Constitution designed public institutions to be accountable to the people through the separation of powers. While the separation of powers remains the bedrock of American democracy, laws like the Wyoming Public Records Act (Wyoming Sunshine Law) allow for harmful overlaps in government powers. This Article begins by assessing federal legal frameworks for open records requests incorporated in the Freedom of Information Act (FOIA). Next, the Article compares and contrasts Wyoming’s …

The National Firearms Act Is An Unconstitutional Tax, Charles K. Eldred

Wyoming Law Review

The National Firearms Act (NFA) regulates certain firearms (most importantly, short-barreled rifles and suppressors) under the taxing power. The Supreme Court upheld it as such in the 1930s. But those precedents are subject to attack under Heller and Bruen, since the NFA taxes the exercise of constitutional rights the earlier precedents did not recognize—and does so without any historical precedent. Moreover, consideration of rarely considered limitations on the taxing power that the Supreme Court reaffirmed in Sebelius leads to the conclusion that several provisions of the NFA violate the taxing power, independent of any Second Amendment concerns. In sum, the …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

Risks, Benefits, Opportunities, And Electronic Formalities In The Law Of Wills: A Comparative Approach, Bridget J. Crawford, Margaret Isabel Hall, Tina Cockburn, Rosie Harding, Kelly Purser

Elisabeth Haub School of Law Faculty Publications

Traditional "formalities" in the law of wills-including formal requirements for revocation by destruction-contemplate paper documents, wet signatures, and testators and witnesses in the physical presence of one another. Unless these traditional requirements have been modified by legislation, wills made using one or more electronic formalities will not meet the formal requirements for a valid will. Traditional wills formalities have become something of an outlier as the use of electronic text, records, signatures, and witnessing has become routine in many spheres, including for the creation and storage of valid legal agreements. The special nature of wills, and their consequent vulnerability to …

Adaptation For Whom? Understanding The Impacts Of Dyke Policies On Small-Scale Farmers In Ca Mau Province Of Vietnam, Nguyen Minh Quang, Nguyen Van Minh, Nguyen Vo Chau Ngan, Martha B. Lerski

Publications and Research

Low-lying deltas worldwide are extremely vulnerable to sea-level rise. As the risks of climate-induced flooding become increasingly clear, the thirst for infrastructure-driven adaptation increases. This highlights a patent need to understand the impacts of engineering adaptation solutions, especially those targeting built structures such as dykes and sluices, on farmers from a bottom-up, farmer-centred perspective. The study addresses this call by examining cases where dyke policies, while successful in some dimensions, have undermined small-scale farmer livelihoods in Ca Mau ― Vietnam’s southernmost rural province. It identifies areas in need of attention and adds empirical data related to this group of farmers. …

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

Benched Judges, Anna Roberts

Faculty Scholarship

No abstract provided.

Corporate Governance Speech, Sarah Haan

Faculty Scholarship

No abstract provided.

Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie

Faculty Articles

The bankruptcy court is the face of the federal judiciary to much of the American public. Almost as many cases are filed in bankruptcy courts every year as are filed in the federal district courts and circuit courts combined. And in each bankruptcy case, there are often dozens or more affected parties. As such, it is critical that the public has confidence in the role of the bankruptcy court and its judges. Yet, since the creation of the Bankruptcy Code in 1978, the non-Article III bankruptcy system has faced seemingly never-ending challenges to subject matter jurisdiction in the bankruptcy context …

A Workable Common Law Baseline For Regulatory Takings, Adam J. Macleod

Faculty Articles

Rights to use property are property rights. The Takings Clause of the Fifth Amendment requires governments to provide just compensation when they take property. In our constitutional republic, legislatures are competent to change the law, and legal changes sometimes alter private rights, including use rights. The Takings Clause does not forbid such legal changes. It only requires compensation for property rights taken as a result.

To give use rights the constitutional protection that the Takings Clause requires, courts need a baseline of rightful property use to show when a change in the law that adversely affects use rights amounts to …

The Uniform Code Of Military Justice At 75: Reflections On The Transformation Of The American Military Justice System, David A. Schlueter

Faculty Articles

The Eighteenth George S. Prugh Lecture in Military Legal History by Professor David A. Schlueter: The Uniform Code of Military Justice at 75: Reflections on the Transformation of the American Military Justice System

From Cigarettes To Cereal: Analyzing The Rise, Peak, And Fall Of Ultra-Processed Foods And The Legal Battle Against Industry Food Deception, Charlotte F. Baird

SMU Science and Technology Law Review

This Comment explores the legal, regulatory, and public health dimensions of ultra-processed foods (UPFs) in the United States and abroad, revealing the urgent need for comprehensive reform. It traces the historical evolution of UPFs, exposing how Big Tobacco strategically pivoted into the food industry after facing public backlash and regulatory crackdowns with cigarettes and tobacco products. Using the same research tactics, behavioral manipulation, and aggressive marketing practices once employed to sell cigarettes, Big Tobacco companies repurposed their corporate expertise to engineer food designed for potential addiction, overconsumption, and profit, while often targeting children and marginalized communities. This Comment critically examines …

Incremental Innovation, George Horvath

SMU Science and Technology Law Review

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in trans- formative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need …

Shutting Down The Supply Chain Pipeline Of Counterfeit Goods Running From Alibaba To Amazon, Daniel C. Chow

SMU Science and Technology Law Review

An immense supply chain pipeline constantly funnels millions of counterfeit goods from Alibaba’s e-commerce sites in China to third party sellers who sell these goods on Amazon to U.S. consumers. Amazon has acknowledged that it has a problem with counterfeits on its e-commerce sites, but its current responses to counterfeiting are primarily performative and intended to pacify disgruntled brand owners and frustrated consumers. Amazon’s responses will likely have little or no effect on counterfeits on its websites. This Article sets forth a direct and straightforward method for shutting down or seriously disrupting this pipeline based on using China’s existing laws. …

Disenchanting Consent, Ruifeng Song

SMU Science and Technology Law Review

Despite being criticized as a flawed mechanism for data protection, con- sent has witnessed a revival in the recent wave of state privacy statutes. One factor that contributed to the revival may be the widely held belief that con- sent constitutes the “cornerstone” of data privacy laws. This Article conducts a comparative historical survey to examine the validity of this belief. The findings are twofold. First, contrary to what many believe, consent has been playing a limited role in global data privacy laws. Second, consent is an inherently defective mechanism for data protection. Some of its problems have existed since …

It Is Our Flaws That Make Us Humane: How Technology Ruined Judicial Craft, Shai Dothan, Gregor Maučec

SMU Science and Technology Law Review

There is ample evidence that people are not completely rational. They suffer from a series of biases that limit their abilities to make the best decisions and to stick to them. Judges are a unique group of people. They go through many years of training that counter some of these biases, but not all of them. In fact, there is a whole field of research dedicated to predicting how judges, with their human flaws, are going to behave. But today, judges can use an increasing number of artificial intelligence (AI) tools to assist with their craft, particularly with research and …

Regulation To Reinforce The Evidentiary-Science Base Of U.S. Medicine In The Age Of "Omics", Michael J. Malinowski

SMU Science and Technology Law Review

United States’ technology transfer law and policy (TTLP) integrates government, academia, and industry—a “triple-threat” research and development (R&D) methodology—and harnesses commercial incentives to stimulate market application of federal government-funded invention. TTLP, which has proven a potent catalyst for remarkably prolific biomedical R&D since Congress enacted its cornerstone legislation in 1980, is transforming U.S. medicine to molecular medicine—to personal genome medicine (PGM)—in real time. A genomics (gene function in the context of an organism’s entire genome, meaning its full set of genetic instructions) complement to the Human Genome Project (HGP) emerged in the 1990s. Genomics has given rise to a portfolio …

Top Ten Biotechnology Patent Cases Of 2024: Loper Bright, Federal Circuit Turmoil, Patent Term Adjustment, And Naturally Occurring Nucleic Acids, Kevin E. Noonan, Andrew W. Torrance

SMU Science and Technology Law Review

A pivotal year for biotechnology patent law, 2024 was marked by consequential court rulings and evolving legal frameworks. This article surveys the ten most significant judicial decisions impacting biotech patents, highlighting major themes and trends in policy, litigation, and regulation. Courts at all levels grappled with core patentability requirements in the life sciences, from the Supreme Court’s continued laissez-faire stance on subject-matter eligibility to the Federal Circuit’s stringent enforcement of disclosure sufficiency rules.

No Harm, No Foul? The Recent Trend Of Super Speed Chapter 11 Bankruptcy, Isabella Leblanc

Emory Bankruptcy Developments Journal

Super speed chapter 11 bankruptcies have become a popular option for debtors seeking a quick restructuring process. Since In re Bluebird in 2006, courts have allowed debtors to complete a chapter 11 restructuring in record time, sometimes in less than a day. Such bankruptcies afford the debtor speed when the traditional chapter 11 timeline would effectively push the debtor into liquidation. In early super speed chapter 11 cases, the courts used the equity powers in section 105(a) of the Bankruptcy Code to analyze whether the circumstances warranted such speed. However, since 2016, courts have improperly asserted that the super speed …

Keynote Address: The Future Of Constitutional Interpretation, Madiba K. Dennie

Saint Louis University Law Journal

The American constitutional order is in a state of flux, caused in part by the Supreme Court and its embrace of originalism. The originalist ideology contends that the Constitution has one true historically discoverable meaning, and interpreters must understand the document today the same way the public purportedly understood it when it was enacted. While its advocates insist that originalism promotes objectivity and democratic legitimacy, closer examination reveals that it is little more than a political tool designed to entrench 18th-century power hierarchies by transforming some of the nation’s lowest historical shortcomings into its highest legal standards. The author argues …

Originalism, The Second Amendment, And The Vibe Of The Constitution, Allen Rostron

Saint Louis University Law Journal

Constitutional law often comes down to how judges feel about the vibes of the Constitution’s text, structure, and history. This has always been true, but in the past, courts had more leeway to be honest about this. With a majority of the Supreme Court embracing an originalist approach to constitutional interpretation, the opportunity for candor has been lost. Judges now pretend that history and tradition supply the answers to difficult constitutional questions, even when they must rely on tenuous inferences from the historical record. This Essay examines major cases from the past where the Supreme Court acknowledged that it was …

Judicial Jujitsu In The New Originalism, Marcia L. Mccormick

Saint Louis University Law Journal

The Supreme Court’s adoption of the “history and tradition” test has prompted a substantial body of critique. Most of that critique has focused on problems connected with historical analysis, but additional aspects of the test’s application warrant scrutiny. This essay focuses on one of those: how the Supreme Court redefined what counts as evidence of a right in Dobbs v. Jackson Women’s Health Organization. The Court applied the same test in Dobbs that it had in New York State Rifle and Pistol Ass’n v. Bruen in an opposite manner to reach the opposite result. In Bruen, the Court …

The Court’S Haphazard Reasoning On The Separation Of Powers, Steven D. Schwinn

Saint Louis University Law Journal

The Supreme Court in recent years has taken a sharp and decisive turn toward originalism in cases touching on individual rights. Say what you will about the Court’s originalism in individual-rights cases (and there’s much to say), at least it’s an approach. We can’t even say that much about the Court’s treatment of cases touching on the separation of powers.

In short, the Court’s separation-of-powers opinions are a mess. They lack any consistent methodology or any coherent theory across cases. If five or six justices agree on the result in any given case, it seems, the explanation and reasoning are …

Chemerinsky’S Lament: Insurrection, Secession, And The End Of American Democracy, Anders Walker

Saint Louis University Law Journal

In his latest book, No Democracy Lasts Forever, Erwin Chemerinsky laments the decline of democracy in America. Citing problems like the Electoral College, the Senate, and partisan gerrymandering, Chemerinsky posits that the United States Constitution itself is to blame. If we do not amend it in radical ways, he argues, then America is likely to break apart as prosperous, populous states like California no longer find it in their interest to preserve the union. Though riveting, Chemerinsky’s account fails to acknowledge that the Constitution’s undemocratic features have long served to preserve the union, and may well continue to do …

Table Of Contents

Saint Louis University Law Journal

No abstract provided.

Back To The Future: Understanding And Navigating Design Patent Nonobviousness After The Lkq Decision, Alexandra Kerr

Saint Louis University Law Journal

The Federal Circuit did not build a time machine out of a DeLorean. However, in a decision that echoes the past and will transform the future, the court, sitting en banc, dismantled four decades of design patent precedent. In LKQ Corp. v. GM Global Technology Operations, LLC, the Federal Circuit overruled the previous “Rosen-Durling” test for design patent obviousness. The new standard revives the roots of design patent precedent and further harmonizes design patent standards with utility patent law. This article will examine how a return to the flexible obviousness standard will alter the niche, yet significant, role …

Unwarranted Warrants? An Empirical Analysis Of Judicial Review In Search And Seizure, Miguel De Figueiredo, Brett Hashimoto, Dane Thorley

Faculty Articles and Papers

Every year, police perform searches governed by the Fourth Amendment on hundreds of thousands of individuals and their property throughout the United States. Many of the academy’s most decorated scholars have focused on the genesis and jurisprudential nature of the Fourth Amendment’s warrant requirement. Surprisingly, we know almost nothing about how the Fourth Amendment regulates searchers and how searches actually work in practice.

In this Article, we pull back the curtain on the search and seizure process by presenting the largest quantitative study of warrants of any kind. We analyze over 33,000 warrant applications filed through Utah’s “e-warrants” system over …

Judging Demeanor, Kiel Brennan-Marquez, Julia Simon-Kerr

Faculty Articles and Papers

This Article challenges the conventional wisdom that defendant demeanor-affect, body language, and physical appearance-helps juries assess guilt. On the contrary, we show that demeanor evidence poses an inherent risk of propensity-based reasoning. It invites jurors to convict defendants based on whether they ‘look like criminals, "rather than on the actual facts of the case. In doing so, demeanor evidence facilitates cultural and racial subordination. It enables members of dominant groups-consciously or not-to penalize members of less-dominant groups for failing to appear innocent or credible. We argue that existing law has things backwards. It treats defendant demeanor as presumptively useful and …