Digital Commons Network^™

"Because The President Said So:" Agency Reason Giving And Presidential Statements Of Will, Nina A. Mendelson

Articles

Reason giving has long been understood to legitimate administrative agency actions by assuring legal, nonarbitrary, stable, and well-considered decisions. It is core to the Administrative Procedure Act's process and judicial review provisions. But the obligation to give reasons is receiving a challenge from the political accountability side, as executive orders skyrocket and the Supreme Court moves towards unitary executive theory in decisions such as Trump v. Slaughter and Seila Law v. CFPB. In striking down independent agencies under Article II, the Court has emphasized that political accountability of agencies to the President is critical. Both the President and executive agencies …

Is Originalism Orthodoxy?, Neel Sukhatme

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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.

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

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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.

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

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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.

Owning The Al Revolution, George S. Georgiev

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No abstract provided.

Abundance And The Supreme Court, Nicholas Bagley

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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 …

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

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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 …

Algorithmic Tax Ownership, Young Ran (Christine) Kim, Dmitry Erokhin

Articles

Tax ownership is a crucial concept for determining tax liabilities, compliance, and enforcement. However, neither the courts nor the IRS has provided clear guidance on how to analyze it. Since the Supreme Court first outlined a twenty-six-factor test for determining tax ownership in Frank Lyon Co. v. United States in 1978, this multifactor test has remained largely unchanged, and there has been no further guidance from the courts or the IRS to this day. Even tests with shorter lists of factors only add to the confusion regarding compliance and enforcement, as there is no clarity on which factors are most …

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

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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 …

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.

How Licensing Compromised The Library, Aaron Perzanowski

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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 …

Agency Fact-Making, Haiyun Damon-Feng

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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 Gdpr-Compliant Fatca Structure?, Michael Hatfield

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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 …

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

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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 …

Joint Bank Accounts: Who Needs Them?, Reid K. Weisbord, Stewart E. Sterk

Articles

Joint bank accounts, once known as a “poor man’s will,” emerged more than a century ago as a probate avoidance device. This Article contends that joint accounts no longer serve a useful estate planning function, and they pose an unacceptably high risk to banking consumers because the legal framework governing lifetime ownership rights is deeply flawed and underdeveloped. Courts typically apply one of two prevailing models for allocating lifetime rights: (1) the traditional joint tenancy approach, which presumes equal ownership of account funds by each party; and (2) the Uniform Probate Code’s approach, which presumes ownership in proportion to each …

Living To Die: Life Imprisonment Without Remission Or Parole In India, Preeti Pratishruti Dash, Rushil Batra

Articles

This article critically examines the Supreme Court of India’s use of life imprisonment without the possibility of remission or parole (LWORP) as a sentencing alternative to the death penalty. While the Constitution Bench in V Sriharan vs Union of India (2015) upheld the constitutionality of such sentences, it did not articulate principled standards governing their imposition. This article argues that the absence of such standards has produced a vacuum in LWORP sentencing. To substantiate this claim, we analyse fifty-three Supreme Court judgments delivered between 2016 and 2024 in which death sentences were commuted to LWORP. The analysis reveals widespread inconsistency …

Protecting Cultural Personality, J. Janewa Osei-Tutu

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When companies use cultural symbols or cultural heritage from an indigenous or local community without their knowledge or permission, it can lead to claims of cultural appropriation, particularly in the fashion industry. Yet, the law provides little to no remedy. Trademarks and geographical indications can be used to protect collective cultural identities. However, these intellectual property laws are not helpful if the affected cultural group has not commercialized its identity by offering goods or services to the public. This Article contributes to the literature by theorizing a dignitary-based intellectual property model for protecting cultural identities. It draws on the U.S. …

Reimagining Legal Education: The Transformative Power Of Small-Group Instruction, Michael I. Meyerson

Articles

Legal education is failing its students. Those entering their first year of law school have greater anxiety and less developed reading and writing skills than ever before. The traditional large Socratic class, which was never the most effective teaching method, has become increasingly counterproductive.

This Article contends that small-group instruction provides the opportunity for superior teaching, especially for first-year law students. Recent scholarship in active learning, educational psychology, and students’ mental health demonstrates the limitations of the traditional large Socratic class experience. Building on that theoretical foundation and informed by sustained classroom experience, this Article argues that small-group pedagogy more …

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 …

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 …

Brokering Safety, Chinmayi Sharma, Thomas E. Kadri, Sam Adler

Articles

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim's personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity-that is, making themselves and their information harder to find.

This Article exposes privacy law's …

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 …

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 …

Teaching A Social Justice Approach To Leadership In Law Schools, Tamar Ezer

Articles

Leadership is critical for social justice. Our law students have the potential to serve as future social justice leaders, building strong organizations and movements to carry out this work. Drawing on both leadership theory and practical examples from clinical legal education, this piece argues for a broad definition of leadership, embracing diversity and encompassing the counter-cultural values of listening and humility. It further proposes a three-dimensional model of social justice leadership, engaging the mind, heart, and spirit, and suggests teaching practices to strengthen each component. The first dimension focuses on cognitive competencies, including substantive mastery of an area of law …

An Analysis Of Global And Regional Human Rights Standards On Gender-Based Violence, Tamar Ezer, Denisse R. Cordova Montes

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No abstract provided.

Fibonacci-Driven Recursive Ensembles: Algorithms, Convergence, And Learning Dynamics, Ernest Fokoue

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This paper develops the algorithmic and dynamical foundations of recursive ensemble learning driven by Fibonacci-type update flows. In contrast with classical boosting Freund and Schapire (1997); Friedman (2001), where the ensemble evolves through first-order additive updates, we study second-order recursive architectures in which each predictor depends on its two immediate predecessors. These Fibonacci flows induce a learning dynamic with memory, allowing ensembles to integrate past structure while adapting to new residual information. We introduce a general family of recursive weight-update algorithms encompassing Fibonacci, tribonacci, and higher-order recursions, together with continuous-time limits that yield systems of differential equations governing ensemble evolution. …

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 …

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, …

The Bankruptcy Revolving Door, Belisa Pang

Articles

The American consumer bankruptcy system is a costly regime with profound societal implications. Between 2008 and 2023, consumers filed 13.8 million bankruptcy cases across the ninety-four federal bankruptcy districts in the United States, generating over $4 billion in court filing fees alone. When accounting for attorney fees, trustee expenses, creditor costs, and broader economic externalities—such as increased interest rates borne by other consumers—the total financial impact easily reaches tens of billions, if not hundreds of billions, of dollars.

Against that backdrop, this study uncovers a startling phenomenon: nearly 46% of the consumers who filed bankruptcy in 2023 were repeat filers, …