Digital Commons Network^™

Rules Of The Road: Toward National Regulation Of Autonomous Vehicles, Adam Raviv

Journal of Law and Mobility

After decades of promise, self-driving cars are now becoming a meaningful reality on our roads. Yet not a single federal law or regulation governs autonomous vehicle operation in the United States—despite widespread agreement among policymakers, advocates, and industry stakeholders that a national safety framework is necessary. This article provides the first comprehensive legal analysis of what a federal safety regulation for autonomous vehicles can and should look like. It describes the current landscape of autonomous technology. It analyzes both the existing federal legal regime for vehicle safety regulation as well as state, local, and international standards that apply to autonomous …

Rethinking The Fund Termination Sanction, Samuel R. Bagenstos

Articles

Title VI of the Civil Rights Act of 1964 is often referred to as the “sleeping giant” of civil rights law. It is a “giant” because it prohibits any form of race discrimination engaged in by any recipient of federal financial assistance, and because the remedy set forth in the statute for a violation is the termination of federal funds. And it is “sleeping” because, except for a brief moment during the desegregation era, the federal government had never seriously attempted to terminate a recipient’s federal grants for a violation of the statute. Nor had the federal government seriously attempted …

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 …

Designing Contract Modification, Albert H. Choi, George G. Triantis

Articles

For long-term commercial contracts, modification tends to be the norm rather than the exception. While modification often takes place in response to an arrival of new information, contracting parties frequently modify the terms in response to a shift in bargaining power. In this Article, we explain how the flexibility to renegotiate in response to a shift in bargaining power can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve, such as from the emergence of outside opportunities, to enter into contracts earlier and …

The Durability Of Protections Against Abuse At Interpol Amidst Rising Authoritarian Pressures, Kristina Daugirdas

Articles

Over centuries and across continents, authoritarian governments have demonstrated a large appetite for international cooperation to target political opponents across borders. In 1851, the “first modern police organization”—the Police Union of German States, whose members included Austria and Prussia—was established “with the express purpose of policing the political opposition of established autocratic regimes.” During the 1970s and early 1980s, military regimes in South America participated in a secret scheme known as Operation Condor to coordinate their efforts to suppress subversion. A recent analysis of twenty-nine “hard authoritarian” regional organizations found that twenty-five were engaged in police cooperation. The Shanghai Cooperation …

Ai-Powered Lawyering: Ai Reasoning Models, Retrieval Augmented Generation, And The Future Of Legal Practice, Daniel Schwarcz, Sam Manning, J. J. Prescott, Patrick Barry, David R. Cleveland, Beverly Rich

Articles

Generative AI is set to transform the legal profession, though its most promising uses and ultimate effects are still unclear. While AI models like GPT-4 improve efficiency, they can also “hallucinate” and may undermine legal judgment, particularly in complex tasks typically handled by skilled lawyers. This article examines two emerging AI innovations that may mitigate these concerns: Retrieval Augmented Generation (RAG), which grounds AI-powered analysis in legal sources, and AI reasoning models, which structure complex reasoning before generating output. We conduct the first randomized controlled trial assessing these technologies, assigning upper-level law students to complete legal tasks using a RAG-powered …

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 …

State Climate Superfunds, Rachel Rothschild

Articles

The harmful effects of climate change have already arrived in cities and states across America, with disasters increasing markedly in recent years along with more gradual environmental changes like sea-level rise and drought. To protect populations and natural resources, significant funding will be necessary for preventative measures as well as disaster response.

At present, it is states and ordinary taxpayers who must shoulder the enormous costs and planning for climate adaptation. A number of state legislators, however, have recently proposed enacting new laws that would require the companies who have most profited from fossil fuel usage to assist in funding …

Authorship Nonsense, Jessica Litman

Articles

Copyright law’s primary device for promoting progress is to bestow rights on the authors of works. Rights vest automatically and last for a very long time. Authors’ choices to retain, license, or transfer those rights fuel opportunities to communicate the works to their audiences. The copyright system’s mechanisms for determining who authored works (and therefore automatically obtained copyright rights) should be both accurate and reliable, since misidentifications will undermine the law’s working as intended.

This article examines authors’ creation of works and copyright law’s handling of authorship disputes. Many works result from creative collaboration. Although the copyright statute incorporates mechanisms …

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

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

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.

Noneconomic Tort Damages And Biased Beliefs About Vulnerability To Harm, Roseanna Sommers

Articles

The American tort system aspires to provide fair compensation to injured plaintiffs, regardless of socioeconomic status, race, religion, or gender. Recent experimental evidence from psychology suggests, however, that factfinders consistently judge identical harms as less severe when experienced by individuals of lower socioeconomic status (SES). People presume, for instance, that a paper cut hurts a wealthy person more than a less well-off person, that domestic violence inflicts greater suffering on a high-SES woman than a lower-SES woman, and that bullying harms a fiveyear- old from a high-SES family more severely than one from a low- SES family. This Essay examines …

An Incidental Standard For Medical Ai, Nicholson W. Price Ii

Articles

Medical AI is poised to make a major difference in the provision of health. It brings major challenges, though: how can developers and implementers ensure that it will work safely and effectively—especially within the context of complex and highly variable health-care systems? Standards provide one key tool, potentially providing guidelines for everything from privacy to accuracy to how AI interacts with human clinicians. This Essay considers the last of these, describing a powerful quasi-standard from a surprising source: an FDA guidance document that tells developers when certain AI systems are not considered medical devices, and are therefore not regulated by …

United States V. Arthrex, Inc., 594 U.S. 1 (2021), Nina A. Mendelson, Rebecca S. Eisenberg

Book Chapters

United States v. Arthrex addressed a seemingly straightforward Appoint­ments Clause 1 challenge to the secretarially appointed administrative pat­ent judges (APJs) who serve on the Patent Trial and Appeal Board (PTAB). The challengers successfully argued that APJs exercised too much author­ity with too little supervision to qualify as "inferior" officers. Importantly, in Arthrex the U.S. Supreme Court also extended a recent string of invali­dations of legislative structures that had been aimed at enhancing agency independence. The Arthrex Court asserted the need for political control over agency adjudication decisions and did so, moreover, in an old depart­ment with a long administrative adjudication …

Sustainable Mobility In International, European And National Law: A Perspective From Europe, Lando Kirchmair

Journal of Law and Mobility

This Article develops a European perspective on sustainable mobility, a concept still underexamined in legal scholarship, and argues that meeting today’s mobility needs while preserving ecological foundations for future generations will not occur without deliberate regulatory intervention. After clarifying the evolution of the core concepts of sustainability, mobility, and sustainable mobility, the Article shows how international, European, and Austrian law have progressively incorporated sustainability goals in the transport sector. It then proposes a taxonomy of financial incentives–from subsidies and tax breaks to behavioral nudges—and evaluates their effectiveness, emphasizing the need for flexible, context-specific regulatory instruments. Applying these insights to self-driving …

Book Review: Automobiles, Cultures And The Question Of Law, Stephen M. Young

Journal of Law and Mobility

Unsettling Colonial Automobilities: Criminalisation and Contested Sovereignties is a compelling interdisciplinary and multileveled study that sits at the intersection of law, criminology, settler colonial studies, and cultural analysis. The authors are well-suited to this task. They include Professors Harry Blagg, with expertise in First Nations community-engaged criminology; Thalia Anthony, from legal and carceral studies; Wiradjuri scholar Juanita Sherwood, who studies Indigenous health and community research; and Kieran Tranter, an expert in cultural legal theory. Together, they offer a layered interrogation of how the motor vehicle and automobility shape the settler colonial ordering of Australia.

This review is comprised of three …

Rethinking Transnational Adjudication: The Normative Foundations Of Institutional Design, Sanctions-Related Arbitration Frameworks, And Digital Recognition Systems, Avaskhan Asanaliyev

SJD Dissertations

This dissertation examines how emerging judicial and dispute resolution architectures can sustain cross-border commerce, investment, and enforcement in the post-Soviet space and beyond, at a time of institutional fragility, geopolitical tension, and rapid digitalization. Drawing on the experience of Kazakhstan, Russia, Ukraine, and key global hubs, it argues that institutional innovation in courts, arbitration, and enforcement mechanisms is central to rebuilding credible governance frameworks for international business. It does so through three interconnected studies that together explore the evolution of modern adjudication: first, through the transplantation of a common law judiciary model within a civil law state; second, through the …

Accounting For Spatial Effects And Social Norms In Making Algorithmic Law: Insights From And Applications In Urban Mobility, Jingkang Gao

Journal of Law and Mobility

This Article examines a prominent idea in the law and technology literature: that algorithms and big data can be used to make law dynamic and personalized. As currently envisioned by legal scholars, “algorithmic law” entails laws that adjust in real time to changing conditions and vary across individuals, improving welfare by tailoring legal rules and standards to personal characteristics.

This Article argues that this vision of algorithmic law is incomplete—and often counterproductive. Existing proposals treat personalization as a function of individual attributes alone, overlooking the fact that effects of individual behavior are fundamentally interactive. Individual behavior is shaped by spatial …

A Golden Age For Us . . . Or For The Airlines? Ensuring Robust Federal Consumer Protections To Make Flying Great Again For Everyone, David S. Nahmias, Julian Sanghvi

Journal of Law and Mobility

Flying today is not meaningfully better for passengers than it was twenty years ago—and the airlines are largely to blame. Airlines leverage opaque pricing practices and junk fees to extract greater revenue from passengers, while the quality of air travel has deteriorated. Despite its mandate to protect the flying public and the air travel market from deceptive and anticompetitive practices, the Department of Transportation has been largely captured—adopting industry-favorable regulations and procedures while cutting commonsense consumer protections. This Essay examines the airlines’ coordinated campaign to circumvent and dismantle consumer protections, and how the industry have largely captured the federal agency …

Escape Probability: Rethinking Wartime Protection Of Nuclear Facilities, Pearle M. Lipinski

Michigan Journal of International Law

The 2022 Russian attacks on the Chernobyl and Zaporizhzhia nuclear facilities in Ukraine shocked the international community. Claims that the attacks constituted war crimes immediately entered the public consciousness, and a flurry of opinions were set forth on the international humanitarian law (“IHL”) protections afforded to nuclear plants, focusing on Article 56 of Additional Protocol I of the Geneva Conventions, which provides special protection to nuclear electrical generating stations. These opinions primarily focused on the immediate applicability and shortcomings of Article 56 on the attacks at hand, often operating on the presumption that a massively consequential environmental and humanitarian disaster …

Conspiracy And Social Movements, Steffen Seitz

Michigan Law Review

Conspiracy prosecutions of social movements are on the rise. From anti-“Cop City” protesters in Atlanta to pro-Palestinian protesters in California, prosecutors are increasingly wielding conspiracy law to suppress social movements. This development is troubling. Social movements have long served as vital engines of democratic self-governance; they crystallize issues, foster public discourse, and mobilize citizens. Yet conspiracy law endangers these movements— and thus democracy—by targeting what makes them work: public expression and social ties between activists.

This Article makes three significant contributions to our understanding of this threat. First, it demonstrates that a charge of conspiracy requires remarkably little—just the appearance …

Standard Textualism, James A. Macleod

Michigan Law Review

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

The Law Of The Mid-Transition, Alison Gocke

Michigan Law Review

To address climate change, our energy systems need to transition from fossil fuels to clean energy resources. There is a tendency to think this transition will occur in a linear, seamless progression: We will move from the (old) fossil fuel system at Time A to a (new) clean energy system at Time B. But this belies the reality that an energy transition involves not just building a new energy system, but also unwinding an old one. Crucially, both processes will take time. That means there will be a significant period in which both energy systems coexist.

In the engineering literature, …

Algorithmic Medicine And The Duty To Disclose: Informed Consent Through The Lens Of Radiology, Lee Rodriguez

Michigan Law Review

Informed consent is the law’s mechanism for protecting patient autonomy by requiring disclosure of facts that bear on the decision to accept or refuse care. Artificial intelligence now helps decide what is medically true for patients, yet informed consent law still assumes that diagnostic judgment is rendered by a human mind whose reasoning is at least in principle communicable. Radiology has become the leading setting for this tension. AI systems triage worklists, flag suspected abnormalities, and anchor first-pass impressions in ways that guide radiologists’ attention and, in practice, can coauthor diagnostic conclusions while remaining invisible to patients. When patients are …

Report On The 2025-26 Survey Of Applied Legal Education, David A. Santacroce, Robert R. Kuehn, June T. Tai, Sarah Boonin

Other Publications

This report summarizes the results of the Center for the Study of Applied Legal Education’s (CSALE) 2025-26 Survey of Applied Legal Education. The 2025-26 CSALE Survey is CSALE’s seventh triennial survey of law clinic and field placement (i.e., externship) courses and educators. The results provide insight into the state of experiential legal education in areas like program design, capacity, administration, funding, and pedagogy, and the role of clinic and field placement educators in the legal academy. Law schools, legal educators, scholars, and oversight agencies rely on CSALE’s data. The 2025-26 CSALE Survey is composed of two parts. A Survey of …

Throwing The Supreme Court/Free Speech A Bone, Leah Litman

Reviews

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

The Institutions Of Exceptions: Justification In Trade And Investment Treaties, Julian Arato

Michigan Journal of International Law

International economic law binds states in the interest of liberalizing markets, including in cross-border trade in goods and services (trade) and capital (investment). The treaty regimes for both trade and investment do this by disciplining states through legal rules, while preserving a modicum of governmental authority over domestic policy. The preservation of policy space in these regimes usually involves a process of exceptions-based justification – through formal exceptions clauses in most trade treaties and some investment agreements, and also through informal exceptions-style reasoning by adjudicators in the investment treaty regime more generally. This “exceptions paradigm” of justification has worked well …

The End Of Territoriality?, Reuven S. Avi-Yonah

Articles

The One Big Beautiful Big Act (OBBBA) of 2025 is generally consideredto be a continuation of the Tax Cuts and Jobs Act (TCJA) of 2017.1Thatis definitely true as far as the individual tax provisions are concerned, be-cause the OBBBA merely made permanent the TCJA provisions with minorchanges, such as increasing the cap on the state and local tax deduction from$10,000 to $40,000. For the corporate tax, the OBBBA continued some of thechanges in the TCJA (such as expensing) while relaxing others (such as amorti-zation of research and experimentation (R&E) expenditures and a stricter limiton interest deductions) without changing the overall …