Digital Commons Network^™

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

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In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

Saving Agency Adjudication, Aaron L. Nielson, Christopher J. Walker, Melissa F. Wasserman

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When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have …

Environmental Geography And Law: Toward A Synthesis, Michaela Anang-Hadjicostandi, Sophia Borgias, Karrigan Börk, Ann M. Eisenberg, Guadalupe M. Franco, Cinnamon Carlarne Hirokawa, Keith H. Hirokawa, Jonathan London, Melinda Morgan, Jessica Owley, Shannon Roesler, Sonya Ziaja

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This Article introduces the new interdisciplinary field of Environmental Geography and Law, which has deep roots in ecology, social science, and law. Environmental and natural resources laws are situated in specific times and places where the climate, ecosystems, history and political economy influence both the land and the law. These places drive and constrain the way law develops. In turn, the law shapes places, from the dispossession and forced migration of indigenous groups, to land development via railroad land grants, to patterns of resource extraction and infrastructure development. Past efforts to integrate law and geography have focused more on critical …

Sport, Soft Disempowerment And The 1966 Fifa World Cup, Richard Woodward

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Sport is increasingly acknowledged as a vital component of the United Kingdom’s arsenal of soft power assets. However, the UK’s attempts to wring soft power from sport have met with mixed success. Many of the UK’s experiences align with an embryonic literature suggesting that sport, as well as enabling the production of soft power, is simultaneously capable of eroding it, a phenomenon dubbed ‘soft disempowerment’. Drawing upon original archival documents, this article examines how the Foreign, Commonwealth and Development Office (FCDO) commandeered the 1966 World Cup and England’s victory in the competition in a doomed attempt to communicate positive messages …

Is The Utpr Extraterritorial Or Discriminatory?, Reuven S. Avi-Yonah

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On January 20 President Trump issued two executive orders on international tax. The first order rejected the OECD’s two-pillar project, stating: The OECD Global Tax Deal supported under the prior administration not only allows extraterritorial jurisdiction over American income but also limits our Nation’s ability to enact tax policies that serve the interests of American businesses and workers. Because of the Global Tax Deal and other discriminatory foreign tax practices, American companies may face retaliatory international tax regimes if the United States does not comply with foreign tax policy objectives. This memorandum recaptures our Nation’s sovereignty and economic competitiveness by …

Tax Experience Isn’T Everything: A Tale Of Two Justices., Reuven S. Avi-Yonah

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Any student of federal income taxation is familiar with a series of important Supreme Court tax decisions written by Justice Harry Blackmun (associate justice, 1970-1994). They would also know of three important decisions written by his contemporary, Justice Thurgood Marshall (associate justice, 1967-1991). It is interesting to compare the two, because Blackmun was the only recent justice with extensive tax practice experience, whereas Marshall had none. Yet, most of Blackmun’s tax opinions were wrong while Marshall’s opinions were right.

Us V. Rahimi, Originalism's Loaded Weapon, And The Lost Boys Of The Supreme Court, Mary Anne Franks

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No abstract provided.

Rivers V. Guerrero, Meagan R. Hurley

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Danny Rivers sought federal habeas relief, arguing that his trial counsel was ineffective. Rivers’s petition was denied, but while his initial habeas appeal was pending, he initiated a second filing to include new information that his prior counsel failed to utilize in an exculpatory report supporting his innocence. Applying 28 U.S.C. § 2244(b)(2), the district court determined it was “without jurisdiction to entertain” the new evidence because Rivers’s filing was a “second or successive” petition. The Fifth Circuit of Appeals agreed.

Deputization And Privileged White Violence, Ekow N. Yankah

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A number of high-profile and racially charged killings, such as Trayvon Martin’s, Kenneth Herring’s, Ahmaud Arbery’s, and Jordan Neely’s, have been at the hands of civilians declaring themselves the law. These deaths stemmed from a phenomenon best described as “deputization.” Deputization describes a latent legal power that has empowered White people throughout American history to claim authority to enforce the law, as they see it, upon racial minorities generally and Black people in particular. This power turned the ancient common law duty to police all felons in England into a specific American common law duty to police Blacks. From the …

Shadow Banking And Securities Law, Gabriel V. Rauterberg, Jeffery Yufeng Zhang

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Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but fall outside the scope of banking regulation—aptly termed “shadow banks”—were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem: extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through a different route—securities law. Our first contribution …

Next Generation Legal Researchers: Implementing Critical Information Literacy Through The Acrl Framework To Ensure Student Success On The Nextgen Bar Exam, Laura Wilcoxon

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Students who began law school in the fall of 2023 could be among the first to encounter the NextGen Bar Exam. Examinees will now be required to demonstrate proficiency in legal research to become practicing attorneys. This change provides an opportunity to evaluate the pedagogy employed to prepare students for the bar exam and beyond. Incorporating critical information literacy into the legal research curriculum will enable students to master the analytic and metacognitive skills that will be tested on the NextGen Bar Exam. Law librarians can incorporate these skills into legal research instruction by implementing the Framework for Information Literacy …

Waste, Property, And Useless Things, Meredith Render

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How should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world?

Approximately sixty million tons of electronic waste, or "e-waste" -for example, discarded iPhones, refrigerators, desktop computers -is produced each year. This annual pile of electronic rubbish represents sixty-two billion dollars' worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the groundwater, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created …

Regulating Hidden Ai Authorship, Jacob Noti-Victor

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With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI. In the markets for creative content—fine art, books, movies, television, music, and the like—producers have …

Flow Dynamics Of Agricultural Waste Nanofibers: Shear, Temperature, And Oscillatory Insights, Bilge N. Altay, Burak Aksoy, James Atkinson, Christopher Lewis, Carlos Diaz-Acosta, Raymond Francis

Articles

The rheology and fiber size of corn stover (CS) and cleaned cotton gin trash (CGT) cellulose nanofibers (CNFs) were studied including behaviors at both moderate and extremely high shear rates, to simulate industrial processes ranging from mixing and pumping to high-speed coating, printing, and extrusion. Particle size analyzer showed that 99% of CS fibers measured around 226 nm, while 85% of CGT fibers were approximately 143 nm. Both CS and CGT CNFs formed gel-like suspensions, and shear flow tests revealed that all samples exhibited shear-thinning behavior, allowing easy flow under shear forces. Gels with higher solid content (1%) demonstrated extended …

A Comparison Study Of Senior And Junior Deck Officers’ Interpretations Of The International Regulations For The Prevention Of Collisions At Sea, Ian Heffernan, Tom O'Mahony

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The International Regulations for the Prevention of Collisions at Sea (IRPCS) provide a comprehensive set of instructions for watchkeeping officers to follow and prevent collisions at sea. This study compares how six newly qualified deck officers and six Master Mariners, who were all trained at the same college, applied the IRPCS. Individual, semi-structured interviews were used to uncover how the 12 participants applied and interpreted the rules for three authentic scenarios. Phenomenography was used to capture the qualitatively different means by which participants interpreted the IRPCS. For basic collision avoidance situations, the results indicated little difference between the cohorts' ability …

The International Law Commission's Seventy-Fifth (2024) Session: Immunity Of State Officials From Foreign Criminal Jurisdiction And Other Topics, Charles C. Jalloh

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The International Law Commission (Commission or ILC) held its seventy-fifth session at its seat in Geneva from April 15 to May 31 and from July 1 to August 2, 2024. The Commission was chaired by Mr. Marcelo Vázquez-Bermúdez (Ecuador), and for the first time since its establishment in 1945, elected a majority of three females out of the five officers elected to its bureau annually. The Commission celebrated its seventy-fifth anniversary and progressed its work on the topics in the program of work despite the shortening of the twelve-week General Assembly approved session to ten weeks due to the liquidity …

Strategically Restated Defaults, Wendy G. Couture

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Business and commercial statutes are composed almost entirely of default rules, which parties may override via agreement or adopt via silence. Drafters of these statutes, and theories about the substance of default rules, assume that parties indeed adopt statutory default rules via silence. Against this backdrop, this Article examines unexpected behavior by parties to business and commercial agreements: parties often restate statutory default rules in their agreements rather than adopting those rules via silence. Based on a review of actual limited partnership agreements and security agreements, this Article identifies five unique species of restatement-bald, tweak, refill, baseline, and context restatements-and …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

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The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

Institutionalized Ostracism, Danieli Evans

Articles

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Tax In Law Schools, Michael Hatfield

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At the 2023 Association of American Law Schools Tax Section meeting, professors discussed their impressions of a decline in the number of JD students studying tax. Their impressions were consistent with declines that have been documented in similar fields. Between 2011 and 2021, U.S. accounting programs saw an 18% drop in students, while new CPA candidates declined 39% from 2010 to 2022. In the United Kingdom, the number of law schools that teach tax has diminished by 43% since 2002. This Article examines tax education in 40 U.S. law schools, focusing on course offerings and enrollment trends from 2012 to …

The Muslim Secular: Parity And The Politics Of India's Partition: By Amar Sohal, Oxford, Oxford University Press, 2023, 328 Pp., £83.00 (Hardback), Isbn: 9780198887638, Salmoli Choudhuri

Articles

Sohal's book explores early to mid-twentieth century Muslim thinkers who rejected communal separatism in favour of a secular nationalism that upheld a unified vision of India. But what was the ideological enemy of the Muslim secular in the high noon of anti-colonial nationalism? Crucially, secularism itself lacks a stable conceptual ‘other’. Often, this space is occupied by ‘communalism’, a unique and ambiguous Indian nomenclature that is pejoratively and variously ascribed to minority positions, exclusive majoritarianism, and anti-nationalism. As a result, despite Sohal’s careful identification of intellectual differences between the thinkers, the master noun he uses to organise them conceals more …

Three Implications Of Moore., Reuven S. Avi-Yonah

Articles

In his majority opinion in Moore, Justice Brett Kavanaugh listed several provisions of the code that could be subject to a constitutional challenge if realization were a constitutional requirement, as suggested by Justices Amy Coney Barrett, Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch. Kavanaugh wrote: In short, the Moores cannot meaningfully distinguish the [mandatory repatriation tax] from similar taxes such as taxes on partnerships, on S corporations, and on subpart F income. The upshot is that the Moores’ argument, taken to its logical conclusion, could render vast swaths of the Internal Revenue Code unconstitutional. See, e.g., 26 …

From Land Reform To Landfare: Land Claims And The Welfare State In Kerala, India, Sudheesh R.C

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While large-scale land reform may still be underway in many countries, other contexts have states responding to land claims through scattered land provision measures. This article puts forward “landfare” as a lens to capture such measures and unpacks its features in one location. The article first explains this term, outlining its location in and departure from the land reform scholarship. It next shows how Kerala, India, widely cited in the scholarship for its 20th century land reform, addresses the land claims of its Adivasi citizens in the 21st century through landfare. Through an exploration of Adivasi land claims and an …

Gender Equality Plans In Research Organisations And Higher Education Institutions As A Catalyst For Transformative And Sustainable Change, Yvonne Galligan

Articles

Gender Equality Plans (GEPs) play a pivotal role in shaping the European Union’s commitment to fostering sustainable structural change in Research organisations regarding gender equality. This article considers the dynamic evolution of the EU policy on GEPs, assesses the state of play with regards to GEPs following the requirements at EU level, and poses the question: What further can be done to deliver the transformative potential of GEPs, embed their sustainability and advance towards inclusiveness at greater speed? Drawing on the insights of feminist institutionalism, which highlights the relevance of informal practices as well as formal rules in shaping an …

Sweeping Section Three Under The Rug: A Comment On Trump V. Anderson, William Baude, Michael Paulsen

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No abstract provided.

Dispatches From Amendment Valley, Alison Lacroix

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No abstract provided.

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

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In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a …

Locating Consumer Financial Regulation, Nikita Aggarwal

Articles

Recent advances in data-driven technology in consumer financial markets, commonly referred to as "fintech," have resurfaced the question of whether and to what extent data, particularly consumers' personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

The Legacy Of Ferguson: Building Worker, Community, And Student Power To Respond To The Carceral State, Donna Coker, Melody Sinckler, Kira Mikes

Articles

The 2014 killing of Michael Brown in Ferguson, Missouri sparked national outrage regarding police violence in Black communities. But as time passed, Ferguson came to symbolize more than another episode of law enforcement violence. A Department of Justice (DOJ) report revealed that Ferguson's city coffers relied on an intentionally extractive criminal legal system that aggressively levied fines and fees in a racially discriminatory manner. As the DOJ findings illustrate, advocates seeking to transform or abolish the criminal legal system must rigorously analyze the political economy of the carceral system in their locale.

We describe a law school course aimed at …

Colombia, Covid-19, And The Colonial Trap: Reflections On The Politics Of Knowledge Production, Fionnuala Ní Aoláin, Bill Rolston, Claire Wright

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The COVID-19 pandemic has made historical and contemporary colonial relationships between and within states more fraught. This complexity is apparent within the research process itself, adding a new dimension to debates on positionality and the politics of knowledge production. Drawing on critical approaches to International Relations, and in dialogue with an emerging literature on the implications of the pandemic for knowledge decolonization, we reflect on our experience as scholars from the UK/Ireland researching colonial legacy and Transitional Justice in Colombia. The aim of this autoethnographic article is to suggest how the COVID-19 pandemic affected inequalities between researchers based in Europe …