Digital Commons Network^™

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.

Writing – Écriture, Peter Goodrich

Articles

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

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

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No abstract provided.

An Integrated Framework For Information Security Risk Management: A Mixed-Methods Systematic Literature Review, Biju Varghese, Quang "Neo" Bui

Articles

Driven by escalating threats and regulatory scrutiny, information security risk management (ISRM) is now a strategic imperative for organizations across the industrial spectrum. Although prior literature reviews offer valuable insights into ISRM subdomains, they remain fragmented and overly reliant on manual methods, limiting their scope and scalability. Additionally, only limited reviews have been able to comprehensively synthesize ISRM literature across its three foundational pillars: processes, governance, and strategy. To address this gap, we conduct a large-scale systematic literature review of 623 ISRM-related articles using a mixed-methods approach which combines natural language processing techniques with thematic analysis. We identify 22 thematic …

How Licensing Compromised The Library, Aaron Perzanowski

Articles

Libraries are under attack on multiple fronts. Fueled by right-wing talking points, social-media misinformation, and conspiratorial fantasy, efforts to remove or restrict access to books in public and school libraries have exploded across the United States. At the same time, libraries have confronted a disturbing rise in threats of violence and harassment directed at staff and patrons. State and federal actors have targeted library budgets. And on occasion, local residents have voted to defund their own libraries.

But it gets worse. Libraries face new challenges to their basic operations. Materials are harder than ever to acquire, and many in-demand digital …

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 …

Virtual Humans In Virtual Reality: A Scoping Review On Sociability, Fidelity, And Expression, J K Sangeeth Chandran, Marisa Llorens Salvador, Cathy Ennis

Articles

Introduction:

Virtual reality (VR) systems have evolved significantly over the past decade, enabling immersive experiences with enhanced realism and interactivity. This has motivated an interest in socially oriented applications. As user proxies, Virtual Humans (VHs) play essential roles in such applications. However, despite technological advancements, achieving realistic, expressive, and socially responsive VHs continues to present design and implementation challenges. In this scoping review, we present the state-of-the-art of VR VHs, examining the impact of VHs on the user experience.

Methodology:

We reviewed 59 papers retrieved from five databases across three core themes: the implementation and impact of VH facial expressions, …

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.

Law And The Self-Coordinating Market Idea, Sanjukta Paul

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Much of the focus of the live Symposium was on comparing existing scholarship associated with two intellectual communities. I have no objection to that enterprise in the abstract, though I think it is a bit premature where law and political economy (LPE) is concerned and sets up an apples-to-oranges comparison to the decades-old streams of work and thinking in law and economics (L&E). But I would rather use the privilege of the space in this written Symposium to sketch what I believe is the ultimate substantive nub of contestation in this conversation about the core subject matter of “the economy” …

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 …

The Free Exercise Of Religion As A Privilege, Kyron J. Huigens

Articles

In the span of a decade, the Supreme Court has restructured the Free Exercise Clause entirely. It has removed the counterweight of disestablishment; it has sought parity between religion and secularity by means of strict scrutiny analysis turning on a principle of nondiscrimination; and it has opened the way to a general exemption from secular law for the faithful by ceding the question of what counts as an exercise of religion to the faithful themselves. This Article proposes reading the free exercise of religion as a privilege in response to these changes. This privilege stands against secular law in the …

A Citizenship Model Of The Fourth Amendment, Danieli Evans

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Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for …

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Benjamin Schwarcz, Brenda 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 …

Jurisdiction And Citizenship, Ilan Wurman

Articles

This Article makes a series of interventions into the existing literature on birthright citizenship. It makes three historical claims about the common law rule and its development. First, the Article centers the importance of parental status. The relevant status was not the citizenship of the parents, however, but whether they were under the protection of, and owed allegiance to, the sovereign. The common law rule therefore did not depend on descent, but the modern belief that the rule depended solely on place of birth is also mistaken. Second, it reveals through an examination of safe-conducts and English statutes from the …

Family Law Agreement And The New Gender Bargains, June Carbone, Brian H. Bix

Articles

The great family law divide is said to be marriage, as marriage has emerged as a marker correlated with race and socioeconomic status. This article argues that the real family law divide, inside and outside of marriage, is agreement. Family law, and the family court system that implements it, produce agreement when legal rules, societal norms, and family court procedures operate together to encourage shared understandings expressed through statuses such as marriage or parenthood, and legally enforceable agreements. In an increasingly unequal society, the family understandings of the college-educated middle class have moved apart from those much less privileged in …

The Efficiency Paradox Of Majoritarian Democracy, Barbara Luppi, Francesco Parisi

Articles

Majoritarian democracy is widely regarded as the canonical procedure for converting heterogeneous individual preferences into collective decisions, yet its welfare properties are far more fragile than legal and political theorists suggest. This paper contributes to the literature on the limits of majoritarianism by applying a spatial voting model to demonstrate that the conditions under which majoritarian democracies produce efficient outcomes are narrowly constrained by the structural features of majority rule itself. We formalize a multidimensional policy environment in which voters bargain over both the policy vector and lump‑sum transfers. We show that—even with transferable utility among members of the majority …

Style And Substance: A Review Of Jill Barton's The Supreme Guide To Writing, Christina Frohock

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No abstract provided.

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

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No abstract provided.

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 …

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 …

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 …

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.

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 …

In Service Of The State: Foreign Financing, Infrastructure, And Imperialism In Tsarist Russia, Christopher A. Hartwell, Paul Vaaler, Boris Vinogradov

Articles

Russia’s imperialism in the nineteenth century has been far less scrutinized than other episodes of great power colonization, but the Tsar’s expansion into the Caucasus was indeed an ongoing imperial project. The movement of Russian troops and settlers was only feasible with the creation of a large railway network, an undertaking for which the Tsarist regime lacked adequate funding. In response, the regime developed a system of state guarantees and incentives to attract foreign investors looking for higher returns and willing to finance railways serving the imperial project. We illustrate this point with a case study of Paris-based Crédit Lyonnais …

Teaching Cross-Cultural Communication In Law School: Lessons From Medicine, Social Work, And Business, Mireille Butler, Jaclyn Celebrezze

Articles

Legal clients in the United States are increasingly multilingual and multicultural. More than 71 million people living in the United States communicate in a language other than English. Consequently, the lawyer’s duty of shared understanding is taking on new meaning. With the advent of ABA Ethics Opinion 500, cross-cultural communication skills are a lawyer’s ethical duty and a law school’s mandate. Additionally, ABA Standard 303(c) and the potential of increased experiential learning credit requirements make clear that immediate curricular changes are needed. To prepare for the modern practice of law, tomorrow’s lawyers need to develop cross-cultural skills while in law …

Standard Textualism, James A. Macleod

Articles

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 …

New Judicial Federalism And The Establishment Clause: Classroom Ten Commandments As A Case Study In State Constitutional Protection, Caroline Mala Corbin

Articles

Louisiana recently enacted a law requiring a Ten Commandments display in every public school classroom from kindergarten to college. Forty-five years ago, the U.S. Supreme Court ruled that a nearly identical attempt to introduce Christianity into the public schools violated the Establishment Clause—the clause in the U.S. Constitution’s First Amendment that requires some degree of separation between church and state.

Unfortunately, the U.S. Supreme Court has since reduced the Establishment Clause to a shadow of its former self. It replaced doctrinal tests that protected religious minorities with a history and tradition test that is easily manipulated and that presumes the …

The Academic, Psychological, And Physical Impact Of Motor Skills Difficulties On College Students: A Scoping Review, David Gaul Phd, Suzanne Mccarthy Wolf

Articles

Purpose of Review

This scoping review examines the extent and quality of research literature to determine the impact of motor skills difficulties on college or university students. It assesses the adequacy of current institutional supports and identifies opportunities for more inclusive educational practices.

Recent Findings

Four databases (PubMed, SCOPUS, PsycINFO, and Web of Science) were searched for English-language studies published since 1970. Eighteen studies met inclusion criteria: 12 empirical, 4 descriptive, and 2 program evaluations. Six papers from the UK addressed support, social isolation, and academic confidence; six Israeli studies focused on handwriting, dysgraphia, and accommodations; three US studies examined …

Antitransgender Legislation And Needs Of Transgender Floridians, 2018–2024, Callan Hummel, Kim-Phuong Truong-Vu, Kathryn Nowotny, Ashley Mayfaire, Beaux Ramos, Jasmine Mckenzie, Charlton C. Copeland, Tiffany R. Glynn

Articles

Objectives. To document transgender Floridians’ service needs before and after antitransgender state legislation.

Methods. We conducted descriptive and change point analyses of intake survey data collected by a transgender-led community-based organization in Florida from 701 clients who requested services between 2018 and 2024.

Results. Findings show enrollment for services increased during the rise in antitransgender legislation, with pressing needs for legal and financial support for name changes and gender-affirming health care. The percentage of clients requesting sexual health resources increased, especially among Black clients.

Conclusions. Findings underscore the urgency of (1) understanding the impact of antitransgender legislation on service needs, …

Look What You Made Me Do, Russell M. Gold

Articles

We have understood for centuries that crime is both the product of social forces and individual choice. We know now that crime is affected by economic deprivation, addiction, trauma, and mental health issues. But American criminal legal processes hide this reality by coercing defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong. This coerced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason. A defendant who goes off-script to tell the judge that they have been repeatedly …