Digital Commons Network^™

Between ‘Technology Futures’: How Standards Are Transforming Digital Trade, Craig Atkinson

Centre for Digital Law

Digital trade relies on technical standards. As information technologies advance, international digital standards make the technologies used in trade – or ‘tradetech’ – more interoperable, scalable, and secure.

A wide range of tradetech use cases depend on digital standards, including those for document formats, electronic signatures, digital identity, and cybersecurity. They also encompass system specifications for cross-border payments, electronic transferable records (ETRs), transportation/logistics, trade facilitation, and financial compliance.

Most digital standards are voluntary and are produced by international Standards Development Organisations (SDOs) alongside a growing number of industry-led consortia.

How We Failed Our Children By Failing Them: A Legal Analysis Of Scrapping Of No-Detention Policy In India, Debargha Roy, Sarthak Sahoo

National Law School of India Review

The ratification of the Convention of the Rights of the Child by India in 1992 obligated her towards developing legislation and interpreting laws in harmony with the convention in a child-centred manner to protect the best interests of the child. With the reading of right to education as a part of Right to Life under Article 21 of the Indian Constitution by the Supreme Court, followed by the insertion of Article 21A by the Parliament that guaranteed the right to free and compulsory education to children from the age of six to fourteen, there was a need to introduce a …

Invisible, Manipulated, And Politicised: Rethinking The Conceptual Foundations Of The Un Convention On The Rights Of The Child, Anshul Dalmia

National Law School of India Review

This paper examines whether the rights articulated in the United Nations Convention on the Rights of the Child (‘UNCRC’) can be meaningfully assimilated within the broader framework of international human rights. It locates this inquiry within enduring jurisprudential debates on the nature, justification, and enforceability of children’s rights. While international human rights law presumes a relatively stable rights-bearing subject, children occupy an ambivalent position—simultaneously recognised as rights-holders and as dependents mediated through an adult authority. Drawing on Tobin’s critique, which cautions against the dangers of conceptual indeterminacy, the paper argues that the UNCRC exemplifies these risks. It contends that the …

Deconstructing Parenthood: A Critical Queer Analysis Of Gender, Law, And Bionormativity In India, Jwalika Balaji

National Law School of India Review

Parenthood (the legal connection to one’s child) is often assumed to be a biologically determined and natural status, but in reality, it is a legal and social construct shaped by historical, cultural, and political contexts. This paper critically examines the legal framework of parenthood in India, highlighting how it privileges a bionormative, dyadic, heterosexual parental unit, while marginalising LGBTQ+ individuals, unmarried couples, and alternative family structures. Through a critical queer method, the paper deconstructs the bio-essentialist juxtaposition of gender, conjugality, and reproduction that underpins Indian family law. It explores how the legal framework selectively acknowledges the constructed nature of parenthood …

Glorifying Khaki: Policing, Power, And Copaganda In Hindi Cinema, Stuti Shah, Jyotika Tomar

National Law School of India Review

This article adopts US civil rights advocate Alec Karakatsanis’s conceptualisation of ‘copaganda’ to analyse the commercially successful ‘Cop Universe’ directed by Rohit Shetty, situating it within a broader socio-legal analysis of contemporary policing in India. It argues that copaganda in Hindi cinema recasts police officers not only as vigilantes, but also as embodiments of Hindutva and nationalist virility and a Brahmanical patriarchal order. In doing so, these films normalise extra-legal policing, obscure the structural realities of custodial violence and impunity, and reframe state violence as both necessary and morally desirable. The article situates these cinematic narratives alongside contemporary developments in …

An Excellent Genealogy Of The Core Concepts Of Indian Contract Law: A Review Of Dr. Shivprasad Swaminathan’S “A Historical Introduction To Indian Contract Law” (Routledge 2025), Katy Barnett

National Law School of India Review

This review discusses Dr Shivprasad Swaminathan’s new book, ‘A Historical Introduction to Indian Contract Law’, including his discussion of the history of Indian contract law, formation of contracts, contractual consideration, privity, contractual vitiating factors, frustration, damages and stipulated sums, and unjustified enrichment. As noted in the last chapter of Dr Swaminathan’s book, the discussion goes to the very heart of the common law itself and how it operates. We can all learn from the Indian experience of codification.

The Missing Constitutional Law Of Executive Conditions, Nicole Huberfeld, Matthew B. Lawrence

Faculty Articles

This Article contributes to the development of the constitutional law of executive conditions. The appropriations presidentialism of the second Trump Administration—the shift from bilateral executive/legislative cooperation and compromise in federal spending to executive unilateralism in defiance of congressional control—has forced courts into the administration of federal spending like never before. As a result, judges have been forced to confront legal questions that remained mostly dormant during the era of executive/legislative cooperation, including questions about the constitutionality of efforts to encourage through spending conditions what the federal government cannot mandate (or has not mandated) directly, like speech or silence on particular …

The Paradox Of Intellectual Property At The U.S. Supreme Court, Tonja Jacobi, Matthew Sag

Faculty Articles

The Supreme Court is dramatically more politically polarized in the Roberts Court era, and the justices have been criticized for highly ideological and partisan decision-making. Yet, we show that there is one area of law that is becoming less ideologically divided and predictable: intellectual property (IP). In an earlier study, we showed that, prior to the Roberts Court, IP case outcomes were predictable based on judicial ideology, with more conservative justices embracing IP rights, as they do for real property. In the last two decades, IP has become more influential on the economy and society, through the increasing dominance of …

Trial By Character, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results of …

Performing Democracy, Carliss N. Chatman

Faculty Journal Articles and Book Chapters

American universities are frequently portrayed as stewards of democracy—sites where dissent is protected, truth is pursued, and diversity is championed. Yet these institutions often betray these ideals, especially under the pressures of donor influence, reputational risk, and political retrenchment. This Essay interrogates the internal contradictions of the university by centering one of its most guarded rituals: faculty hiring. Building on my 2021 article The Soft Shoe and Shuffle of Law School Hiring Committee Practices, I argue that hiring serves as both a performance of inclusion and a mechanism for preserving institutional whiteness, elite networks, and gatekeeping norms. I extend …

Facilitating Mortgage Modification To Save Homes And Mitigate Lender Losses, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

Homeowners in financial distress or whose homes have been damaged by natural disaster may avoid foreclosure if their lender agrees to modify the loan to reduce payments. Commercial loans may also be modified to avoid foreclosure or in response to changed circumstances or changing market conditions. Although loan modifications are generally beneficial to both borrowers and lenders, barriers to modification exist. The Consumer Financial Protection Bureau (CFPB) has addressed some of the roadblocks to residential loan modifications by regulating the procedures that mortgage servicers must follow in dealing with delinquent borrowers, but the CFPB and its regulations are at risk …

Chat M.D., Nathan Cortez

Faculty Journal Articles and Book Chapters

Large language models (LLMs) such as Claude and ChatGPT are the most powerful artificial intelligence (AI) systems ever created, and they are being used to diagnose and treat patients. But LLMs have been shown to be unreliable, unpredictable, and unsafe on occasion. New AI guidelines recommend hundreds of standards, such as ‘transparency’, ‘trustworthiness’, and ‘safety’. But there is deep uncertainty whether these are sufficient. The literature focuses mostly on which standards best suit AI models, not on how to transmute standards into law. This article does that by considering AI guidelines as a starting point, then evaluating whether existing frameworks …

China’S Shift Towards Data Openness: Integrating Security With Trade In Cross-Border Data Transfer, Yichen Huang

Michigan Technology Law Review

As the world's second-largest economy, China's stringent cross-border data transfer laws have deterred numerous multinational investments. To address this issue, China has prioritized data openness in its legislative agenda. The passage of the Provisions on Facilitating and Standardizing Cross-Border Data Transfer (the “New Cross-Border Data Transfer Regulation”) in March 2024 marked a significant milestone in this effort. Despite this progress, investors continue to express concerns about enforcing the new law. This article analyzes these recent legal developments and argues that they signal the government's determination to relax data control measures. China's stance is shifting from prioritizing security over trade to …

Valuing Future Lives, Daniel J. Hemel, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Federal regulation often involves a tradeoff between monetary costs in the present and life-saving benefits in the future. A central question in regulatory cost-benefit analysis is how to assign a present dollar value to future lives so that future lives and present dollars can be compared. For regulations that are projected to prevent deaths years or decades down the road, agencies make two key analytical moves. First, they adjust the value of a statistical life upward to reflect the fact that society’s willingness to pay to save lives will rise as people become wealthier in the future. Second, they discount …

Expanding Sources Of Knowledge In Legal Scholarship, Adam Davidson, Jocelyn Simonson

Public Law and Legal Theory Working Papers

No abstract provided.

When Are Foot Pursuits Really Necessary?: How Improved Policies Might Reduce Community Harm, Sharon R. Fairley

Public Law and Legal Theory Working Papers

Despite the widely accepted view that foot pursuits are inherently dangerous for both police officers and citizens, a minority of municipal police agencies have adopted policies that have the potential to minimize the risk of harm by limiting the circumstances in which police officers are permitted to pursue a subject on foot. This paper presents data related to foot pursuit incidents and existing foot pursuit policies. The paper documents that most existing foot pursuit policies are limited in their potential to reduce unwarranted deadly encounters because the guidance they provide requires officers to consider and weigh vague concepts in tense, …

Ip @ The U - January 2026, Jorge L. Contreras, Jonas Anderson

Law School Historical Documents

Welcome to IP @ the U, a periodic newsletter for students, alumni, faculty and friends of the University of Utah College of Law's Program on Intellectual Property and Technology Law. This issue covers highlights from Fall 2025 and early Spring 2026.

An Originalist Interpretation Of Article Iii Permits And Favors Bivens Actions As A Recognition Of The Intrinsic Connection Between Rights And Remedies, Shrivathsan Margam S

Mitchell Hamline Law Journal of Public Policy and Practice

The Bivens Doctrine, which stands for the principle that judges may infer private causes of action for money damages against federal officers from a constitutional text that does not expressly create such remedies, has faced attack from Originalists on the Supreme Court of the United States. Every case seeking to extend the Bivens principle to a new context meets rejection from the Court with concurrences calling for overturning it altogether. This Article will argue that an Originalist approach to interpreting the Constitution, specifically the Original Methods subset of the ascendant lens of Original Public Meaning, permits and counsels in favor …

Genomic Surveillance: Your Dna Is Not Neutral, You Don’T Even Own It., Uri Kim

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

From Player Piano To Generative Ai: Artificial Expression And The Law Of Copyright, Douglas Lind, Adrienne Holz

Fordham Intellectual Property, Media and Entertainment Law Journal

American copyright law has experienced challenges and sometimes faltered when confronting mechanical reproduction. This Article retraces the rise and diffusion of the player piano and the phonograph, examining how they reshaped the making and listening to music. As these technologies spread throughout American society more rapidly than copyright law could adjust, courts misclassified piano rolls and records as merely mechanics. Reducing these new fixations to machinery rather than embodiments of human expression left recorded human musical performances inadequately protected, which facilitated piracy. Applying these lessons, this Article contends that generative AI training implicates copyright law in ways not dissimilar to …

Climate Preemption And Fossil Fuel Entrenchment, Vincent M. Nolette

Sabin Center for Climate Change Law

Mitigating the worst impacts of climate change demands a rapid reduction in greenhouse gas emissions and a transition to renewable, low-carbon sources of energy. This requires building thousands of gigawatts of clean energy at an unprecedented rate and expeditiously retiring existing fossil fuel infrastructure. Yet both parts of this task have been obstructed by state legislative efforts over the last decade — particularly in Republican-led states — to block local governments from reducing greenhouse gas emissions while legally mandating continued fossil fuel reliance. These efforts are accomplished through state climate preemption laws. Framed in neutral or positive terms like “energy …

Could Have Seen That Coming: New York State Department Of Health Taken To Task For Failing To Provide Proper Oversight Of Medicaid Managed Care Provider Networks, Lance Plunkett Jd, Llm

The New York State Dental Journal

A recent audit conducted by the Office of the New York State Comptroller (OSC) found that the New York State Department of Health (NYSDOH) oversight of Medicaid managed care healthcare provider networks was largely illusory and a paperwork sham. This raises the much larger question of whether Medicaid managed care is really serving the population of Medicaid patients. It is already almost a given that it is not serving healthcare providers well.

What Is Hate Speech? A Proposal For An Ordinary And Legal Definition, Hannah Van Dijcke

SJD Dissertations

The term “hate speech” has been stretched in legal and public debates to cover speech ranging from insults to Holocaust denial. This definitional stretching has consequences beyond mere conceptual confusion: it risks obscuring the profound harm that hate speech does, and it facilitates the term’s misuse.

In this dissertation, I aim to precisely define hate speech and its harm, both in an ordinary (colloquial or non-legal) sense and in a legal sense. To do so, I examine real-world examples of speech widely understood to express hate, including texts from the context of the Holocaust and the Rwandan genocide, and conduct …

False Idols In The Early History Of International Taxation, Wei Cui

All Faculty Publications

A careful reading of recent scholarship on the early history of international taxation, especially on the League of Nations ’ work on ‘ double taxation ’ , ought to have dislodged many myths about this history. But more often than not, such scholarship is taken to offer mere details without altering our fundamental understanding. This chapter suggests that this reception refl ects a longstanding pattern in discourses about international taxation: participants perpetuate or cling onto narratives that are easily seen to be false. The chapter exposes this pattern by summarising evidence for four rarely-acknowledged conclusions about the League ’ s …

Race And Racism In Canada’S Immigration Detention System, Efrat Arbel, Prasanna Balasundaram, Hanna Gros, Nana Yanful

All Faculty Publications

Race and Racism in Canada's Immigration Detention System is the first comprehensive, independent study to examine race and racism in Canada's immigration detention system. Grounded in rigorous legal analysis and qualitative research, the study draws on interviews with 50 participants, including people with lived experience of immigration detention, as well as lawyers, paralegals, and service providers who work in immigration detention. The research was guided by an advisory board of people with lived-experience in immigration detention and co-led by a collaborative research team.

Call Off The Dogs: Rethinking Sniffer Dog Searches In Canadian Criminal Law, Sara Gordon

All Faculty Publications

The Supreme Court of Canada has repeatedly held that police sniffer dog searches are Charter-compliant based on a low standard of reasonable suspicion because they are minimally intrusive, narrowly targeted, and can be highly accurate. Since the Court last considered their constitutionality, however, extensive empirical research has fundamentally challenged assumptions about the reliability and accuracy of police sniffer dogs, as well as the harm to individuals subjected to these searches. Moreover, the phenomenon of handler cueing can operate to transmit a police officer’s unconscious biases—even those they would consciously reject—to their dogs, further reducing accuracy and leading to false alerts …

Bloodstain Pattern Analysis And The Gatekeeping Role Of Canadian Courts, Sara Gordon

All Faculty Publications

Despite its long history of admission throughout North America, there appears to be no published Canadian case subjecting bloodstain pattern analysis to the special scrutiny Canadian law demands for novel or contested scientific evidence. Instead, courts have admitted the evidence based largely on the training and experience of forensic examiners, taking it for granted that the field is sufficiently reliable. However, the application of the White Burgess framework reveals that there are serious and severe concerns about the underlying scientific validity of the technique which should render it generally inadmissible. At Stage One of White Burgess, bloodstain pattern analysis fails …

Model Law? Template Legal Culture And The Global Production Of Environmental Law, Natasha Affolder

All Faculty Publications

Lawyers build from templates. Accounts of how law is made rarely mention them. New legislation tends to present itself as original. It is almost never made from scratch. This article makes the hidden process visible. It does so through a study of the near-global spread of environmental impact assessment (EIA) legislation since 1969, using computer-assisted textual similarity analysis to trace what I expected to be identifiable model laws and clear lines of legal inheritance. The search yielded instead a transnational repertoire of legal fragments, repeatedly recombined into new legislative forms across different legal traditions, languages and decades. EIA's legislative spread …

Good Faith And Certainty In Contract Law, Marcus Moore

All Faculty Publications

Does a general principle of good faith create too much uncertainty in  Contract Law? This article provides in-depth consideration of the controversy around this question.Reviewing a number of common arguments and reasonswhy good faith is said to be too uncertain, and responses to these, the article finds a complex picture rather than a simple answer. Recent Canadian experience with recognising a general principle of good faith in contractual performance suggests that at least two further details are critical to the potential for uncertainty: first, whether good faith operates as a freestanding duty or instead functions as a unifying principle that …

The Trial Of Socrates, Jonathan Van Patten

Faculty Publications

In many important ways, the trial of Socrates was not just the trial of the century, nor even the trial of the millennium. It predated the trial of Jesus, which is important for many other reasons, but Socrates’ contribution to how we think about justice and the rule of law is without equal. This Article explores the ways that this fifth-century B.C. trial, located geographically on the margin of what came to be known as the West, is at the center of what makes us a civilization. It is not simply about the drama, nor the politics of free inquiry, …