Digital Commons Network^™

Merger Remedies Unbound, Dhruv Aggarwal, Albert H. Choi, Geeyoung Min

Articles

How should foundational contract law doctrines apply to corporate mergers? This Article argues that recent changes in Delaware law grant parties expansive contractual freedom to define their preferred remedies in merger agreements, untethered from the limits imposed by traditional contract law. A new provision in the Delaware corporate code, or the Delaware General Corporation Law (DGCL), permits penalty clauses in merger agreements, notwithstanding the traditional “anti-penalty doctrine” that forbids punitive liquidated damages in contracts. Delaware courts have also shown deference to specific performance provisions, treating them as presumptively enforceable commitments instead of retaining their traditional judicial discretion over the choice …

Legalistic Noncompliance, Daniel Deacon, Leah Litman

Articles

Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?

This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing …

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue, German Marquez Alcala

Articles

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. Although the lack of consumer reading has been well documented through empirical research, consumers’ ability to comprehend standard-form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard-form homeowners insurance policy improves consumer understanding …

States As Gatekeepers In Global Governance, Kristina Daugirdas

Articles

Over the last several decades, private actors—corporations, philanthropic foundations, and non-governmental organizations—have increasingly contributed to the development and implementation of public international law. In some cases, private actors are developing standards that serve as substitutes for public regulation. In other cases, private actors have been “invited in” to public international organizations as funders, accredited observers and consultants, and even representatives of member states. According to one estimate, 56 percent of international organizations offered some form of access to private actors in 1990; two decades later, more than 90 percent did.

What we are witnessing, in other words, is the growing …

Monitoring, Oversight, And Learning In Medical Ai, W. Nicholson Price Ii

Articles

When medical AI errs, it often goes unnoticed. If there’s a specific patient injury, and the link to AI is obvious, that problem might be reported to the Food and Drug Administration (FDA), but not always. And many other types of problems, like worse performance on specific groups or ineffective integration into health system workflows, simply don’t fall within the contours of regularized reporting. Even if they are noticed by the health system—far from a given—there’s no obvious way to share that information more broadly. Against this backdrop, there are justified calls for better oversight and reporting. But there’s the …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

Covid And The Great Retrenchment, Samuel R. Bagenstos

Articles

The past six years have seen two dramatic shifts in federal health and benefits policy. First, during the COVID pandemic, the government dramatically expanded public benefits. These expansions had incredibly positive effects, and recipients were largely satisfied with them. But after a relatively short time, Congress rolled back nearly all of the expansion. Worse, the immediate pullback set the stage for even more significant retrenchments in the second Trump Administration. Where in 2023 the United States came closest to universal health care in its history—with a record low uninsured rate of 7.7%—the Trump Administration’s Medicaid cuts and failure to extend …

The Basis Of The Labor Exemption Reconsidered, Sanjukta Paul

Articles

Broadly speaking, this symposium queries the question of expanding some actors’ coordination rights under antitrust law as a way of effectuating legal goals relating to “power relations.” I commend the organizers of the symposium for opening this conversation, for asking about the use of “collective bargaining” beyond the traditional labor domain, and for taking on the question in a creative way. These broader questions are essential, and yet my own article will (paradoxically, perhaps) try to contribute to this effort by going back to the core domain of the labor exemption itself—where, it turns

Useful Noise: Understanding Dicta And Knowing What To Do With It, Len Niehoff, Tucker Gribble

Articles

Sometimes we approach the idea of obiter dictum as if it were Latin for “Here the court says something I wish it didn’t.” When a judicial opinion includes a statement that hurts our case, we labor to cast it as dicta and we give it the first name “mere.” If the opposing party quotes the statement, we huff about its irrelevance and dismissively proclaim that it can, indeed must, be ignored. We treat dicta as background noise, and we encourage the court to plug its ears and hum.

Gamification: The Viability Of Using Genai To Create Games To Teach Legal Concepts, Nicole Belbin

Faculty Scholarship

This Essay examines whether generative artificial intelligence (GenAI) can lower the technical, time, and cost barriers that have limited the use of game-based learning (GBL) in legal education. It first considers the science of learning, focusing on spaced practice, retrieval practice, and concrete examples, and explains how GBL can incorporate these strategies. It then evaluates four general-purpose GenAI tools—Perplexity, Gemini, ChatGPT, and Claude—by testing their ability to state legal rules accurately and create games that teach personal jurisdiction.

The results demonstrate both GenAI’s promise and its limitations. Although all four tools incorporated core concepts of general jurisdiction, each omitted at …

Constitutional Colonialism And Decolonization: Moving Toward A Decolonial African Constitutional Future, Luwam Dirar

Faculty Scholarship

This Article is an attempt at theorizing Africa's colonial constitutional legacies and post-colonial constitutionalism. The central argument of this Article is that constitutional law in Africa is a colonial tool that was used to legalize the subjugation of Africans and Africa, and a post-colonial necessity for the "self-determination and statehood" of newly-minted African states, while at the same time, it remains a decolonial battlefield of epistemic colonization. This Article adopts a broader conception of colonialism that extends beyond the 19th-century understanding of European colonialism and interrogates constitutional law as both a colonial tool and an act of self-determination in the …

Cold Comfort: Japan’S “Comfort Women” Litigation Under Transnational Law, Timothy Webster

Faculty Scholarship

Transnational human rights litigation has emerged as a powerful tool to remediate state and corporate abuses. Courts, however, rarely evince the same enthusiasm for these lawsuits as practitioners, scholars, and activists. For the past thirty-five years, “comfort women,” or survivors of wartime sexual exploitation, have used transnational litigation to seek redress from the Japanese government. Yet they have lost nearly all their cases. This Article uses ten “comfort women” lawsuits from Japan to test the limits of transnational human rights litigation. While judges rarely found for the comfort women, their verdicts nonetheless advanced the redress issue by showing the illegality …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Faculty Scholarship

Campaigns to review Japan’s wartime legacy and legal liability have recurred throughout postwar Japan. While most of these efforts have targeted the Japanese government, an important subset of actors has also focused on the role of Japanese corporations. And perhaps no one played a larger role in directing attention towards Japan, Inc. than Kim Gyeong-seok, a Korean forced laborer in the 1940s turned redress activist in the 1990s. As described in this Article, Kim’s 1991 lawsuit against Nihon Kokan launched the corporate accountability piece of the reparations project, an endeavor that continues to create ripples even now. The Article briefly …

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …

Peeking Inside The Black Box: Discovery In Fair Housing Act Cases Arising From Ai Decision Making, Jessica Mahon Scoles

Faculty Scholarship

In today’s real estate market, more housing decisions are being automated. If artificial intelligence renders a biased decision, will the person impacted have any legal recourse? Commentators have expressed concern that the proprietary nature of AI will allow defendants in discrimination lawsuits to avoid discovery, effectively shielding their decision making from judicial scrutiny. This article examines whether AI and algorithm-related information is the discovery black box that some fear it to be.

Addressing the issue in the context of Fair Housing Act (FHA) litigation, the article argues that concerns about access to AI and algorithm-related discovery are overstated. In real …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

Regulating Crisis Pregnancy Centers After Nifla And Dobbs: Controversies Over When Government Is Imposing An Orthodoxy About Abortion, Linda C. Mcclain

Faculty Scholarship

How does this broader sense of Barnette’s proscription of government from imposing “what shall be orthodox” implicate governmental restrictions on reproductive autonomy? Battles over reproductive freedom centrally implicate objections that government is unconstitutionally imposing a gender orthodoxy. Arguments for a right of personal autonomy embodying an antitotalitarian principle of liberty are arguments for a right to resist governmental imposition of an orthodoxy— for example, an idea about the natural or traditional role of women as mothers together with a view about how best to respect the sanctity of life. Rights to reproductive autonomy, grounded in personal autonomy and equality, …

Informed Applicants: Anti-Discrimination Enforcement Based On The Use Of Criminal Records, Benjamin David Pyle

Faculty Scholarship

Navigating the labor market with a criminal record is treacherous. Countless job applicants will be turned down immediately after a potential employer learns they have had contact with the criminal legal system. Criminal records reflect and exacerbate long-standing racial and economic inequalities in the United States. Thus, the use of records in employment decisions will often implicate anti-discrimination laws. However, successfully enforcing these protections requires job applicants to, at minimum, understand why they were not hired. Many applicants never learn why they were not hired and thus will never be able to protect their rights. This Article argues that understanding …

Against Ai Half Measures, Woodrow Hartzog, Neil Richards, Ryan Durrie, Jordan Francis

Faculty Scholarship

So far, U.S. consumer protection policy for artificial intelligence (AI) accountability has largely consisted of industry-led approaches such as encouraging transparency, mitigating bias, promoting principles of ethics, and empowering people. These approaches are vital, but they are only half measures. To bring AI within the rule of law, lawmakers must start drawing substantive lines.

In this Article, we identify four AI regulatory approaches to consumer, data, and democratic harms as half measures. First, transparency does not produce accountability on its own. Second, while mitigating bias in AI systems is critical, even unbiased systems are a threat to the vulnerable. Third, …

Front Matter, Vol. 58 (2026)

Case Western Reserve Journal of International Law

No abstract provided.

Masthead, Vol. 58 (2026)

Case Western Reserve Journal of International Law

No abstract provided.

Foreword: Turning Points And Paradigm Shifts In International Law, Michael P. Scharf, Lucas R. Van Dyke

Case Western Reserve Journal of International Law

No abstract provided.

The Role Of International, Regional, And Domestic Courts In Transitions Toward Peace And Security, Milena Sterio

Case Western Reserve Journal of International Law

Over the past several years, we have witnessed tremendous violations of international law in situations of conflict and mass violence by both state and non-state actors. In Myanmar, hundreds of thousands of Rohingya have experienced severe persecution and have been forced to flee to the neighboring state of Bangladesh. In Sudan, military groups such as the Rapid Support Forces have been committing serious international crimes in the Darfur region and elsewhere. In Ukraine, Russian forces have targeted civilian objectives and have forcibly abducted children. And in Gaza, Israeli forces have been engaged in various violations of international law over the …

Sharenting And Child Rights In The Age Of Platform Capitalism, Christiana Essie Sagay, Unyime Abasi Odong

Case Western Reserve Journal of International Law

The boundaries between private life, work, and visibility have become increasingly blurred in the digital age. Nowhere is this more evident than in the phenomenon of sharenting, a portmanteau of “sharing” and “parenting,” where parents routinely post images, videos, and personal narratives of their children on social media platforms. While often framed as acts of familial affection or digital memory-keeping, sharenting implicates commercial content creation and positions children as de facto participants in global digital labor markets. In this context, childhood increasingly unfolds within algorithmic and economic contexts that transcend domestic boundaries and challenge conventional legal norms, protections, and understandings …

Seizing Responsibility: International Investment Law's Shifting Understanding Of Jurisdiction In Occupied And Annexed Territory, Lena Raxter

Case Western Reserve Journal of International Law

Following Russia’s 2014 occupation and annexation of Crimea, Ukraine pursued the unusual strategy of encouraging its nationals to file investment claims against Russia under the 1998 bilateral investment treaty between Russia and Ukraine. The resulting “Crimea arbitrations” consistently upheld jurisdiction, reasoning that Russia’s effective control over Crimea resulted in the assumption of legal obligations in the region. Many scholars, however, contend that this conclusion was incorrect because the disputes were outside the respective tribunals’ jurisdiction. The resulting fragmentation begs the question: how can international investment law reconcile these competing positions?

In the interest of promoting stability and consistency in international …

Bridging Divides, Building Futures: Affirmative Action From A Global Perspective, Irene Rhodes

Case Western Reserve Journal of International Law

Affirmative action in higher education has long been central to U.S. constitutional debate, but the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) ended race-conscious admissions. This Article uses a comparative framework to examine how Canada, the United Kingdom, Brazil, and India reconcile equality, diversity, and meritocracy. Common law systems emphasize incremental positive action, while Brazil and India employ quota-based statutory models. These contrasts reveal that effective diversity policies must align with constitutional traditions. For the United States, durable reforms should include race-neutral socioeconomic indices, statutory authorizations, and programmatic supports with built-in review mechanisms. By drawing on …

The Rise Of Accountability Mechanisms: The Next Wave Of International Law Justice?, Jacqueline R. Mcallister

Case Western Reserve Journal of International Law

Since 2011, the United Nations (UN) has increasingly deployed investigative mechanisms—or commissions of inquiry, fact-finding missions, and other ad hoc investigations—to not just monitor and document egregious human rights abuses, but also to collect, preserve, and analyze evidence in order to lay the groundwork for future accountability. Importantly, these “accountability mechanisms” tend to deploy in places where the International Criminal Court (ICC) lacks jurisdiction or national courts are unwilling or unable to conduct prosecutions. They thus work to counter impunity gaps. However, since their debut, accountability mechanisms have faced immense political, financial, administrative, and institutional challenges, which have hindered their …

Mapping The Invisible: A Topology Of De Facto Amnesties And The Shifting Landscape Of Accountability, Francois Naaman

Case Western Reserve Journal of International Law

This article introduces the concept of de facto amnesty as a distinct category within transitional justice. While international law has increasingly restricted de jure amnesties, it has paid less attention to informal or structural practices that foreclose accountability in fact. Such practices, whether extensions of statutory amnesties, tacit political bargains, or systemic enforcement failures, have often been tolerated, and at times legitimized, by international actors. Without a clear framework, they risk being conflated either with impunity or with legitimate reconciliatory measures. The paper proposes a working definition of de facto amnesty and a five-step diagnostic method for its identification. It …

Creeping Alliances In Foreign Policy Choices: A World Of Clusters And The Outline Of A Fragmented World Order, Kerem Gülay

Case Western Reserve Journal of International Law

International cooperation and conflict has long been studied through formal institutions, namely, membership in international organizations and participation in bilateral or multilateral treaties. This hardly grasps the informal and contingent relationships and the tacit and pragmatic alliances reflected in countries’ joint positions on multilateral issues. While most theories of alliances were preoccupied with why such formal alliances were formed, this article offers a reconceptualization of international cooperation based on empirical data. It proposes “creeping alliances,” tentatively defined as gradual and often informal cooperation that develops over time characterized by increasing mutual foreign policy alignment, to explain an undertheorized domain of …

The Unspeakable Unspoken: Terrorist Imagery, Symbolic Expression And The Shifting Boundaries Of Free Speech, Ayşe Yağmur Tunçak

Case Western Reserve Journal of International Law

A simple fruit like a watermelon can convey many meanings: solidarity for some, terrorism sympathies for others. Among other things, increasing restrictions on speech drive individuals to the use of symbols for political expression, which may lead to legal controversies at the international level due to the untended complexity of symbolic speech in legal discussions. Unlike verbal communication, the meaning and communicative content of symbols are often indirect and open to interpretation. Thus, international human rights standards should rely on context-sensitive evaluations to prevent arbitrary limitations. Although the European Court of Human Rights (ECtHR), due to its subsidiary role, assumes …