Digital Commons Network^™

Mobility-Restricting Covenants In Business Contracts: The Case Of Franchising, Francine Lafontaine, Lorenzo G. Luisetto, J.J. Prescott

Articles

Several studies show that restrictive covenants in employment contracts, such as non-compete agreements, may affect employees in detrimental ways, including by reducing mobility and suppressing wages. While such concerns are real, these clauses also have the potential to serve legitimate business purposes by helping companies protect valuable information, which can encourage investment and training and enhance social welfare. This paper explores the use of several types of covenants, including non-competes but also confidentiality and post-relationship non-recruitment clauses, in franchise contracts, an important and accessible category of business contracts. Many of these contracts impose restrictive covenants on franchisees but also on …

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

Can Laws Be Flexible? Rethinking Legislation For Innovation, Nicholson W. Price Ii, Nick K. Schneider, Ariel Dora Stem, Jochen K. Lennerz

Articles

Agile legislation adapts principles from agile software development to lawmaking, emphasizing iteration, multi-stakeholder feedback, and embedded revision. We outline this learning-oriented governance model using three case studies: Germany’s stepwise digital health legislation, the EU AI Act, and U.S. FDA user-fee reauthorization. These examples highlight legislative designs that enable structured generation of real-world data and evidence during implementation, informing regulatory interpretation and iterative refinement in rapidly evolving technological domains.

Preemption Of State Fraudulent Transfer Law By The Bankruptcy Code, David G. Carlson

Articles

The article argues that state law tort claims based on fraudulent transfers are preempted by the Bankruptcy Code. It contends that allowing such tort claims to persist interferes with a bankruptcy trustee's ability to achieve universal settlements and recover assets, as the trustee cannot guarantee immunity from third-party tort liabilities.

Writing – Écriture, Peter Goodrich

Articles

This is the twentieth article in this series (and the fifth in volume 77).

Abundance And The Supreme Court, Nicholas Bagley

Articles

Scarcity mars much of American life. Housing prices in our most productive cities are out of control. The nation’s transportation infrastructure is aging and obsolete because it costs so much more to build here than in other developed countries. Meanwhile, China generates nearly three times as much solar energy as the United States, with the gap growing every year.

Why does the richest nation in the history of the world struggle so mightily to get stuff done? That’s the question that propels Ezra Klein and Derek Thompson’s 2025 bestseller Abundance, which galvanized what may be the hottest and most controversial …

Ai, Medicine, And Social Determinants Of Health Data, Ryan Doyloo, Nicholson Price

Articles

This article examines how medical AI systems are incorporating SDoH data and the governance challenges that follow. The authors show that while SDoH integration can enhance clinical workflows and predictive accuracy — potentially improving outcomes for underserved populations — it also introduces acute risks of proxy discrimination, where facially neutral variables replicate protected characteristics. Surveying U.S., EU, and international frameworks, the authors argue that existing regimes lack clear ex ante guidance to distinguish beneficial from harmful uses of SDoH data. In response, they advance post-market monitoring as a pragmatic and scalable pathway: generating real-world, SDoH-stratified evidence that can support enforcement, …

Exploring The Limits Of Qualified Immunity Under Harlow’S Discretionary Function Test, James E. Pfander, Alexander A. Reinert

Articles

No abstract provided.

Technology Before, During, And After Incarceration: Current Product Landscape, Sociotechnical Concerns, And Legal Considerations In The U.S. Context, Yael Eiger, Taylor Hansen, Teanna Barrett, Jevan Hutson, Bryce Clayton Newell, Franziska Roesner

Articles

Emerging technology, including AI, is proliferating throughout the U.S. carceral system. These technologies are marketed to prisons and police departments and then procured using taxpayer money. Previous investigative reporting has exposed troubling kickback schemes, unconstitutional data collection practices, and biased algorithmic outcomes in a handful of prominent technologies (e.g., Flock, Palantir, Clearview AI, COMPAS). In this work, we consider the broader ecosystem of carceral technologies: we catalog 122 products from 53 companies selling technology to carceral institutions. In a collaboration among computer science, law, and surveillance studies scholars, we surface sociotechnical, ethical, and legal concerns related to the use and …

The Corporate Restructuring Machine: Introducing An Open Platform Approach To Workouts, Horst Eidenmüller, Jared Mayer

Articles

Out-of-court corporate reorganizations, or “corporate workouts,” allow dispersed investors with differing interests to coalesce and strike deals to successfully reorganize distressed companies. Corporate workouts, however, suffer from a host of well-known problems, creating “process fragility.” Current bargaining dynamics limit the instances in which corporate workouts can be used, narrow the kinds of deals that can be made, and invite opportunistic and other socially costly behavior. Yet the Artificial Intelligence (AI) revolution is here; how can it help parties navigate corporate workouts?

In this Article, we argue that AI is well situated to help increase the efficiency of corporate workouts. Based …

Vaccines, Religious Liberty, And The Gvr As Doctrinal Signal, Zalman Rothschild

Articles

This Essay proceeds in four Parts. Part I traces the doctrinal baseline, showing that vaccines have long functioned as the limit case for religious liberty. Part II briefly describes the doctrinal changes of the COVID-19 era — the Supreme Court’s expansion of religious equality doctrine, and its emergency-docket denials that left vaccine mandates formally unresolved — before explaining why the GVR in Miller signals a different move: the extension of the religious liberty framework to vaccine mandates, bypassing the comparability analysis that had allowed most courts to sustain them under the equality model. Part III turns to Miller itself and …

Agency Fact-Making, Haiyun Damon-Feng

Articles

Modern administrative-law scholarship, theory, and doctrine generally conceptualize agencies as engaging in three primary functions: rulemaking, enforcement, and adjudication. This understanding of agencies has informed deep debates surrounding the power, independence, and constitutional legitimacy of the administrative state. But the prevailing account is incomplete. It overlooks a fourth core function of the administrative state: its fact-making, or epistemic, function. Across the administrative state, agencies create and disseminate information in ways that are uniquely comprehensive and uniquely powerful. Agencies’ epistemic outputs include the census generated by the Census Bureau, repositories of public-health information maintained by the Centers for Disease Control and …

A Common Pool Of Privacy Problems: Legal And Technical Lessons From A Large-Scale Web-Scraped Machine Learning Dataset, Rachel Hong, Jevan Hutson, William Agnew, Imaad Huda, Tadayoshi Kohno, Jamie Morgenstern

Articles

We investigate the contents of web-scraped data for training AI systems, at sizes where human dataset curators and compilers no longer manually annotate every sample. Building off of prior privacy concerns in machine learning models, we ask: What are the legal privacy implications of web-scraped machine learning datasets? In an empirical study of a popular training dataset, we find significant presence of personally identifiable information despite sanitization efforts. Our audit provides concrete evidence to support the concern that any large-scale web-scraped dataset may contain personal data. We use these findings of a real-world dataset to inform our legal analysis with …

A Gdpr-Compliant Fatca Structure?, Michael Hatfield

Articles

A 2025 Belgian Data Protection Authority (DPA) decision and ensuing preliminary questions referred by the Belgian Market Court to the Court of Justice of the European Union (CJEU) highlights the tension between the General Data Protection Regulation (GDPR) and the US Foreign Account Tax Compliance Act (FATCA) structure in Europe. The FATCA structure relies on intergovernmental agreements (FATCA IGAs) between the US and EU Member States. Under these agreements, Member State tax authorities transfer personal data of their citizens and residents to the US Internal Revenue Service (IRS). It may be determined that these transfers violate some or all of …

Racing To Safety: Tax Policy For Ai Safety-By-Design, Mirit Eyal, Yonathan Arbel

Articles

The White House recently announced its vision of artificial intelligence (AI) policy: AI development is a race and America must win it. To that end, a new America's AI Action Plan directs federal agencies and states to remove regulatory barriers to AI development and accelerate innovation. This approach leaves limited room for regulatory measures that would address the safety risks of powerful AI systems: their behavior in novel domains remains unpredictable, their decision-making opaqueness, and their alignment with human values is uncertain. While experts warn of large-scale accidents, policymakers find themselves in a bind: Regulate AI and cede ground to …

How Ip Ends, Dave Fagundes, Aaron Perzanowski

Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

Is Tax “Law”?, Luís C. Calderón Gómez

Articles

Although taxation remains a hotly contested issue in debates by both politicians and political theorists—over the optimal size of government, distributive (and sometimes corrective) justice, or even the legitimacy of current private property arrangements—taxation has been largely ignored by legal theorists, to the detriment of both tax law and legal theory.  This Article argues that tax law, driven by its battle against tax evasion, is in deep conflict with widely accepted conceptions of “legality”—that is, the qualities that make a rule distinctively and normatively “law.”  This matters because legality is a key buttress in jurisprudential and political theory accounts that …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea K. Schneider

Articles

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client’s risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

Slurry-As-A-Service: A Modest Proposal On Scalable Pluralistic Alignment For Nutrient Optimization, Rachel Hong, Yael Eiger, Jevan Hutson, Os Keyes, William Agnew

Articles

Pluralistic alignment has emerged as a promising approach for ensuring that large language models (LLMs) faithfully represent the diversity, nuance, and conflict inherent in human values. In this work, we study a high-stakes deployment context—mulching—where automated systems transform selected individuals into nutrientrich slurry for the dual purposes of food security and aesthetic population management. Building on recent pluralistic alignment frameworks, we introduce ValueMulch™, a reproducible training, deployment, and certification pipeline for aligning mulching models (MMs) to a wide range of community norms. Through a real-world testbed spanning 32 communities, we show that ValueMulch™ improves distributional agreement with community mulching preferences …

A Legal Transplant Failure In The Ai Age, Xuan-Thao Nguyen

Articles

Thailand positions itself as the new AI-driven innovation hub in the Southeast Asia region as Big Tech companies invest billions in building new data centers to power the AI transformations in all sectors in Thailand. An integral part of Thailand’s new ambition is the legal transplant of personal data protection law from Europe. The transplant, however, is of form, not substance, as this Article illustrates the failure through in-depth analysis of Thailand’s Personal Data Protection Act and provides evidence of rampant violations and noncompliance by the largest ecommerce conglomerate and SMEs. This Article offers suggestions for Thailand to realign its …

Saturated Hierarchical Atomic Incremental Learning (Shail): A Behavioral Learning Perspective On Staged Mastery And Saturation, Ernest Fokoue

Articles

We introduce Saturated Hierarchical Atomic Incremental Learning (sHAIL), a learning paradigm in which complex tasks are approached through a sequence of simpler atomic subtasks, each mastered to saturation before progression. The central mechanism is a saturation criterion that detects when learning dynamics enter a plateau region, triggering consolidation and subsequent ascent to a higher level of task complexity. We develop a theoretical framework for sHAIL and show that it naturally gives rise to \emph{staircased convergence}: alternating phases of rapid improvement and genuine plateau. Within each level, classical convergence guarantees apply under standard smoothness conditions, while the hierarchical transitions are driven …

No Intelligence Without Statistics: The Invisible Backbone Of Artificial Intelligence, Ernest Fokoue

Articles

The rapid ascent of artificial intelligence (AI) is often portrayed as a revolution born from computer science and engineering. This narrative, however, obscures a fundamental truth: the theoretical and methodological core of AI is, and has always been, statistical. This paper systematically argues that the field of statistics provides the indispensable foundation for machine learning and modern AI. We deconstruct AI into nine foundational pillars—Inference, Density Estimation, Sequential Learning, Generalization, Representation Learning, Interpretability, Causality, Optimization, and Unification—demonstrating that each is built upon century-old statistical principles. From the inferential frameworks of hypothesis testing and estimation that underpin model evaluation, to the …

Decorrelation, Diversity, And Emergent Intelligence: The Isomorphism Between Social Insect Colonies And Ensemble Machine Learning, Ernest Fokoue, Gregory Babbitt, Yuval Levental

Articles

Social insect colonies and ensemble machine learning methods represent two of the most successful examples of decentralized information processing in nature and computation respectively. Here we develop a rigorous mathematical framework demonstrating that ant colony decision-making and random forest learning are isomorphic under a common formalism of stochastic ensemble intelligence. We show that the mechanisms by which genetically identical ants achieve functional differentiation— through stochastic response to local cues and positive feedback—map precisely onto the bootstrap aggregation and random feature subsampling that decorrelate decision trees. Using tools from Bayesian inference, multi-armed bandit theory, and statistical learning theory, we prove that …

A General Weighting Theory For Ensemble Learning: Beyond Variance Reduction Via Spectral And Geometric Structure, Ernest Fokoue

Articles

Ensemble learning is traditionally justified as a variance-reduction strategy, explaining its strong performance for unstable predictors such as decision trees. This explanation, however, does not account for ensembles constructed from intrinsically stable estimators-including smoothing splines, kernel ridge regression, Gaussian process regression, and other regularized reproducing kernel Hilbert space (RKHS) methods whose variance is already tightly controlled by regularization and spectral shrinkage. This paper develops a general weighting theory for ensemble learning that moves beyond classical variance-reduction arguments. We formalize ensembles as linear operators acting on a hypothesis space and endow the space of weighting sequences with geometric and spectral constraints. …

Learning Ordinal Geometry: Semantic–Aware Kernels For Ordered Categorical Data, Ernest Fokoue

Articles

Ordinal data arise ubiquitously in survey research, psychology, medicine, economics, and recommender systems, yet kernel methods for such data typically rely on either nominal encodings or arbitrary numeric codings. The former discards order information; the lat- ter imposes a fictitious metric structure. This paper develops a principled framework for kernel design on ordinal scales and introduces a new class of Semantic–Aware Ordinal Ker- nels (SAOK) that simultaneously capture ordinal order and semantic proximity between categories. We begin by formalizing order–preserving embeddings of finite chains and characterizing a broad family of chain distances that are conditionally negative definite. Through Schoen- berg …

Factors For Patient Trust And Acceptance Of Medical Artificial Intelligence, Ana Bracic, Kayte Spector-Bagdady, Sophie Towle, Rina Zhang, Cornelius A. James, Nicholson W. Price Ii

Articles

Artificial intelligence (AI) is increasingly used in clinical care, but widespread adoption requires patient trust. Trust may be enhanced through systemic governance mechanisms or frontline clinicians providing a human in the loop for AI oversight. However, it is unclear how different approaches specifically influence patient trust in the use of medical AI. The objective is to determine the extent to which patient trust in and choice of medical scenarios involving AI are associated with governance mechanisms, clinician presence, performance, and data quality.

Selecting Without Replacement From A Population Of Bands Of Serially Connected Objects, James E. Marengo, Dominick Banasik, Joseph Voelkel, David L. Farnsworth

Articles

The sampling procedure from a finite population of objects that are serially attached into bands is described and analyzed. One object is randomly selected and removed at a time, which results in that object’s band being broken into two bands or shortened by one object. The main result gives the probability of choosing an object that is part of a band of serially connected objects of any specified size at each stage of the selection process.

Sidewalk Living, Michael C. Pollack

Articles

In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit a city from enforcing a criminal ban on encampments on public property such as parks and sidewalks. But even if municipalities are now permitted to use tactics such as policing, encampment clearing, arrests, and imprisonment, these are not the right ways to address the problems of public homelessness.

Instead, homelessness must be understood as one of many conflicts over limited public space. At its best, vibrant sidewalk life enhances communities and local economies. But at its worst, every use of these finite …

Sanctioning Negligent Bankers, Kyle D. Logue, Robert Will Thomas, Jeffery Y. Zhang

Articles

Over just one week in 2023, depositor runs at a few U.S. banks threatened to trigger a worldwide banking crisis. Afterwards, the United States suffered three of the biggest bank failures in the nation’s history; in Europe, Credit Suisse became the largest financial institution to fail since the 2007-2008 Global Financial Crisis. Stunned by this lightning-fast panic, lawmakers, regulators, and academics have called for significant changes to the U.S. financial regulatory framework. Leading among these proposals are calls to improve supervisory oversight of banks, to tighten existing regulations on banks, and to increase deposit insurance limits. But these proposals alone …

When Constitutional Protection For Religious Liberty Gets Lost In Translation: A Case Study From Washington State, Robert W. Gomulkiewicz

Articles

Protecting religious liberty can present difficult challenges when religious liberty conflicts with laws prohibiting discrimination. Balancing religious liberty and nondiscrimination requires courts to accurately apply the U.S. Supreme Court’s complex First Amendment jurisprudence, including cases that address compelled speech, expressive association, and church autonomy. Amidst all the complexity, protection for religious liberty can get lost in translation. One important venue where protection can get lost in translation is in religious liberty cases decided by state supreme courts. The decisions of state supreme courts are especially significant because they provide the authoritative construction for state statutes and the state constitution. In …