Digital Commons Network^™

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

Publications

No abstract provided.

Anchoring Digital Sovereignty, Vivek Krishnamurthy

Publications

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet's infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world's democracies to keep the Internet free, open, and global; yet it …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

Nist's Software Un-Standards, Bryan H. Choi

Publications

The National Institute of Standards and Technology (NIST) has become a beacon of hope for those who trust in federal standards for software and AI safety. Moreover, lawmakers and commentators have indicated that compliance with NIST standards ought to shield entities from liability. With more than a century of expertise in scientific research and standard setting, NIST would seem to be uniquely qualified to develop such standards.

But as I argue in this Article, this faith is misplaced. NIST’s latest forays in risk management frameworks disavow concrete metrics or outcomes, and solicit voluntary participation instead of providing stable mandates. That …

Impacted Stakeholder Participation In Ai And Data Governance, Margot Kaminski, Gianclaudio Malgieri

Publications

Privacy law has long centered on the individual. But we observe a meaningful shift toward group harm and rights. There is growing recognition that data-driven practices, including the development and use of artificial intelligence (AI) systems, affect not just atomized individuals but also their neighborhoods and communities, including and especially situationally vulnerable and historically marginalized groups.

This Article explores a recent shift in both data privacy law and the newly developing law of AI: a turn towards stakeholder participation in the governance of AI and data systems, specifically by impacted groups often though not always representing historically marginalized communities. In …

The Untold History Of "Harmful Interference" In The Regulation Of Radio Frequency Communications, Peter A. Tenhula, Carl R. Frank

Colorado Technology Law Journal

No abstract provided.

The Mental State Of Expression: Generative Ai And The Latent Mens Rea Of Copyright, Dane Fogdall

Colorado Technology Law Journal

No abstract provided.

Code As Content: Open Source Software And Platform Liability, Jessica Cheng

Colorado Technology Law Journal

No abstract provided.

Internet Infrastructure And Content Moderation In The Shadows, Jelena Laketic

Colorado Technology Law Journal

No abstract provided.

Undercover Investigations, Deception, And Democracy, Helen Norton

Publications

No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …

Unseating The Israeli Government From The Un General Assembly In Case Of Non-Compliance With The Advisory Opinion Of 19 July 2024, Maryam Jamshidi

Publications

No abstract provided.

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

A Transformational Agenda For National Security, Maryam Jamshidi

Publications

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …

What Copyright Can't Do, Blake Reid

Publications

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law's powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.

But …

Public Patent Powers, Laura E. Dolbow

Publications

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

Ghosting The Crowd, Andrew A. Schwartz

Publications

Crowdfunded companies are legally bound to provide investors with an annual report--but most don't. This "ghosting of the crowd" violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another.

This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups ("JOBS") Act of 2012 and Regulation Crowdfunding, and proposes a …

Contesting "Address": Conflicts Over The Words We Use To Address And Refer To Each Other, Helen Norton

Publications

Professor Richard Brooks's generative insights provide us with valuable tools for recognizing, and trying to make sense of, address's role in human interactions. That "address"--the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks's Frankel Lecture, I examine some of these conflicts.

As we'll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes …

Terrorism On Trial: Political Violence And Abolitionist Futures, Wadie E. Said

Publications

No abstract provided.

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

Agreeing To Disagree: Abortion Jurisprudence In Jewish And Islamic Law, Rabea Benhalim

Publications

This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in …

Transgender Disenfranchisement, Scott Skinner-Thompson

Publications

Transgender and gender variant people are excluded from formal democratic participation at the polls through a variety of legal mechanisms. Such barriers include purportedly neutral voter identification laws, which may prevent transgender people from voting given the obstacles to achieving accurate identification documents in many states, and felon disenfranchisement laws, which exclude the disproportionate number of trans people ensnared in the carceral system.

But, as this Article explains, transgender people are also deterred from public space and participation more broadly through laws and customs specifically policing gender identity. Such laws include so-called bathroom bills that prevent people from accessing facilities …

The Shifting Economic Allegiance Of Capital Gains, Amanda Parsons

Publications

No abstract provided.

Displaying Wastewater Surveillance Data: An Ethics Framework, Govind Persad, Anne Barnhill, Douglas Mackay

Publications

No abstract provided.

Indigenous Peoples In International (Treaty) Diplomacy, Kristen A. Carpenter

Publications

International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering "Indigenous Diplomacy"—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups, and individuals in bilateral and multilateral settings, informed by Indigenous values, to advance rights, relationships, and remedies, as well as peace and security. This Article examines one category of Indigenous Diplomacy, namely the diplomatic processes surrounding modern and contemporary international treaties. With …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

The Legitimation Of Shareholder Primacy, Ann Lipton

Publications

We are living in a polarized era, and corporate governance is no exception. With controversies raging over "environmental, social, governance," (ESG) investing, diversity, equity and inclusion initiatives, climate change as an investment concern, and even Elon Musk's pay package at Tesla, it seems as though corporate governance has never been so starkly divided along partisan lines.

The divisions have threatened to spill over to Delaware, the preferred jurisdiction for incorporation in the United States. Several high profile cases—including those involving Elon Musk—have called Delaware's neutrality into question. Commenters have argued that Delaware's newly politicized approach threatens to splinter the corporate …

Structural Tax Reform And The Next Reit Revolution, Sloan G. Speck

Publications

No abstract provided.