Digital Commons Network^™

When Money Isn't Money: The Second Circuit's Gutting Of The Discharge-For-Value Defense For Erroneous Payments, Jeanne L. Schroeder

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No abstract provided.

The Safe Harbor For Leveraged Buyouts In Bankruptcy, David G. Carlson

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No abstract provided.

The Improvement Regime: Public Trusts, Real Estates, And India’S Urban Futurities, Anwesha Ghosh

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Over the last two decades, since scholarly writing on India witnessed an “urban turn,” numerous historians have analyzed the role of the improvement trust in the redevelopment of Indian cities in the twentieth century, most specifically those of Bombay, Calcutta, and Delhi. This paper revisits and reassesses some of their key arguments to suggest that rather than studying the “failures” of the individual trusts to foster sanitary built environments, we should pay attention to the contingent workings of the city trusts that were constitutively designed for such failures. Using a comparative analysis of the Bombay and Calcutta improvement trusts, this …

Is It Time To Scrap Stare Decisis?, Wilfred U. Codrington Iii

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Shortly after returning to the presidency, Donald Trump terminated several independent federal officers, prompting legal action by employees who occupied government positions covered by statutory for cause removal protections long held constitutionally permissible and valid. Eventually, one or more suits alleging unlawful termination owing to the removal without cause will reach the Supreme Court to be decided on the merits. Having steadily narrowed the Humphrey’s Executor line of cases that insulate these officers, the Court now seems poised to displace that precedent entirely. In isolation, the overruling would mark a seismic doctrinal shift and major advance in legal conservatism's pursuit …

Lost And Found: The Forgotten Origins Of The “Cruel And Unusual Punishments” Prohibition, John D. Bessler

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The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment’s prohibition against “cruel and unusual punishments” to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later …

The Right To Exit Religion, Zalman Rothschild

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This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members’ ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder’s recognition of a right to exit religion. To make this “right” more concrete, the Article examines impediments to it through a case study of one large insular religious community—the …

Democratic Lawyering: Upending The "Hidden Curriculum" To Prepare New Lawyers For A New World, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

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Multiple heightening crises reveal the deficiencies and contradictions of legal education, in particular the values it imparts. Perpetuating myths about U.S. democracy and rule of law, the enduring formalist, liberal legalist cast of law school is increasingly at odds with students’ lived experiences. As liberal democracy and the rule of law falter, no longer is relying on the “hidden curriculum” or the historically nebulous and mythical narratives of the law and our legal system sufficient to prepare tomorrow’s lawyers for the challenges faced by our profession. Instead, with a boost from ABA Standard 303, this article draws on the tradition …

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

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In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

The Supreme Court’S Old Habits In A New Era? Native Nations, Statehood, And An Indigenous-Led Future For Natural Resources, Monte Mills

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art I of this essay looks back and, relying on Winans and Winters, illustrates the Court’s longstanding commitment to a recognition of tribally reserved rights while requiring a collaborative approach that acknowledges some state interest and authority. Part II then briefly assesses the modern era of Indigenous leadership in natural resources, reviewing the ways in which Native Nations are implementing a new framework of collaborative stewardship for lands, waters, wildlife, and other ecological systems. Finally, Part III considers how the lessons or impacts of this broader movement might be relevant in future conflicts raising questions of statehood and tribal …

Planning A New Paradigm: Tribal Co-Stewardship And Federal Public Lands Planning, Monte Mills, Martin Nie

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Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last half century, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and …

The New Redlining: How Progressive Policies Restrict The Development Of Housing Supply And Perpetuate America's Racist Property Law Past, Steve Calandrillo, Kelsey Dunn

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Recent scholarship has exposed America’s racist property law past. During the twentieth century, decades of deliberate state-sponsored discrimination (a.k.a., “Redlining”) made homeownership—and the accumulation of wealth—more difficult for people of color. In 1948, the Supreme Court outlawed these practices in the seminal case, Shelly v. Kraemer. However, the damage had been done, and has proven to be long-lasting. Redlining slowed economic mobility for people of color and exacerbated the racial wealth gap. As a result, America is in the midst of an affordable housing crisis that disproportionately impacts people of color.

Readers well versed in economics and public policy …

Heritage In Search Of A Home: Archiving The Learning Designs And Artistry Of Instructional Television Of The 1970s And 1980s, Owen Gottlieb

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This chapter tells intertwined stories of the rescue and preservation of two archival collections of instructional (classroom) television programs and attendant materials from the ITV new wave of the 1970s and 1980s. A.I.T., the Agency for Instructional Television/Technology created innovative programming combining instructional design and media artistry, all focused on learners. The ability, afforded by these collections, to address key lacunae in the history could have significant implications for the design of learning media in its current forms of interactive media and video games for learning as well as the development of the next evolution of learning media and technology.

How Experts View The Legal System's Use Of Scientific Evidence, Shari Seidman Diamond, Richard Lempert

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Legal scholars and courts frequently write about how scientific evidence is vetted and presented in legal proceedings, but the views of experts themselves have received little attention. Our research aims to fill that gap. This paper reports some of what we learned from a series of surveys we conducted, beginning with a survey in 2016 of scientists who had been elected to membership in the American Academy of Arts and Sciences.3 Subsequent surveys were directed to subscribers of the journal Science who identified as scientists and engineers and to self-identified experts who advertised their availability as experts to lawyers or …

Letter From Jeffrey Kadet To The Internal Revenue Service Re: Notice 2025-19, 2025-2026 Priority Guidance Plan, Jeffery M. Kadet

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Based on my working experience with numerous clients that spanned over thirty years and my studies over the past twenty-three years both as an academic and in connection with my published articles and governmental submissions, I have identified a number of projects that should be considered a high priority for the Treasury and the IRS. These projects, which are attached as appendices to this letter, cover a number of areas. Importantly, I have not been a paid advisor for over a decade and a half. As such, my recommendations are free of any influence from potentially affected taxpayers. I do …

The President's Orders Targeting Law Firms As Unconstitutional Bills Of Attainder-- Damning Lessons From The Past, Gary Simson

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“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upsidedown process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.

Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of …

Harms, Relationships, And The Contours Of Liability For Emotional Distress, Steven Schaus

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In Reasonableness and Risk, Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question …

The Ai Input Class: Constitutional Urgency And Fair Licensing In Ai Copyright Class Actions, Xuan-Thao Nguyen, Elizabeth G. Porter

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The humanities have long been under attack; now Big Tech is eating them for breakfast. Artificial Intelligence is undermining the cultural and constitutional values of human creativity; it is also threatening the livelihoods of the creative working class. Because neither Congress nor regulators can keep pace with AI’s pace of change, class actions have stepped into the breach. In the first wave of such litigation, authors and artists in courts on both coasts claim that AI companies violate intellectual property law when they “train” their systems on copyrighted works.

This Article analyzes what we call “input” AI claims—that is, proposed …

Winning The Battle, Losing The War: Rahimi, Women, And The Supreme Court, Dana Raigrodski

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Domestic violence and DV-related firearm use are a grave and persistent issue in the United States and have an extensive harmful and deadly impact in the lives of many women. In its 2024 Rahimi decision, the United States Supreme Court held that, as applied to the facts of the case, 18 U.S.C. § 922(g)(8), which bans firearms possession by those subject to a DV protective order, is facially constitutional under the Second Amendment. The Court upheld § 922(g)(8) under Bruen’s “Nation’s historical tradition of firearm regulations” test, finding that founding era laws included provisions preventing individuals who threaten physical harm …

Novel Corporate Governance Structures, Jennifer S. Fan, Xuan-Thao Nguyen

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Artificial Intelligence (“AI”) startups have taken center stage, rapidly disrupting conventional industries at an unprecedented pace with their groundbreaking innovations. Hailed by many as the most significant technological advancement of our era, AI’s profound societal impact has garnered heightened public and governmental scrutiny. The spotlight has recently fallen on OpenAI, the creator of ChatGPT, which weathered a tumultuous period marked by the ouster and subsequent rehiring of CEO Sam Altman, a board reconfiguration, and Altman’s later return to the board. Concerns over AI safety were offered as the rationale for the tandem corporate governance structure of nonprofit and for-profit at …

An Empirical Evaluation Of Communication Technologies And Quality Of Delivery Measurement In Networked Microgrids, Ruairí De Fréin, Yasin Emir Kutlu

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Networked microgrids (NMG) are gaining popularity as an example of smartgrids (SG), where power networks are integrated with communication technologies. Communication technologies enable NMGs to be monitored and controlled via communication networks. However, ensuring that communication networks in NMGs satisfy quality of delivery (QoD) metrics such as the round trip time (RTT) of NMG control data is necessary. This paper addresses the communication network types and communication technologies used in NMGs. We present various NMG deployments to demonstrate real-life applicability in different contexts. We develop a real-time NMG testbed using real hardware such as Cisco 4331 Integrated Services Routers (ISR). …

Negotiating Perceived Employability As Sensemaking In The Context Of Undergraduate Work Integrated Learning, Sylvia Dempsey, Carol Linehan, Margaret Healy

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As labour markets shift responsibility for navigating career transitions and employability from organisations to individuals, sensemaking around their own ‘perceived employability’ gains importance. Prior research suggests work integrated learning (WIL) experiences constitute a significant route to perceived employability for potential entrants to the accounting profession. The mechanisms through which this develops are less understood. Understanding of the impact of WIL on perceived employability, shaping individual career trajectories, augments efforts to attract new members to the profession. This study captures how representations of the world of professional accounting work are built, as entrants construct liminal places within that community. Through qualitative …

Exploring Deaf And Hard Of Hearing Peoples' Perspectives On Tasks In Augmented Reality: Interacting With 3d Objects And Instructional Comprehension, Sanzida Mojib Luna, Jiangnan Xu, Garreth W. Tigwell, Nicolas Lalone, Michael Saker, Alan Chamberlain, David I. Schwartz, Konstantinos Papangelis

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Tasks in augmented reality (AR), such as 3D interaction and instructional comprehension, are often designed for users with uniform sensory abilities. Such an approach, however, can overlook the more nuanced needs of Deaf and Hard of Hearing (DHH) users who might have reduced auditory perception. To better understand these challenges, our study utilized the single-player AR game Angry Birds AR as a probe to explore how 11 DHH participants and 15 hearing participants experienced AR interactions. Our findings highlight that DHH users prefer interaction based on context, effective haptic cues, audio cue substitutes, and clear instructional design. We, therefore, propose …

The Return Of Private Law, Anthony J. Sebok

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Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

Democracy’S Distrust: The Supreme Court’S Anti-Voter Decisions As A Threat To Democracy, Gilda R. Daniels

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This Essay explores perceived biases within recent Supreme Court decisions affecting voting access and their implications for American democracy. The Supreme Court plays a pivotal role in enforcing democratic principles. This Essay examines historical and contemporary examples of judicial decisions that have privileged powerful political candidates and legislatures to the detriment of voters. As a lens for assessing these decisions, the Essay introduces a conceptual dichotomy between candidate-centered and voter-centered perspectives. The Essay argues that the Court’s prioritization of the former perspective has forced citizens to bear the burden of antidemocratic decisions, which in turn has led to widespread distrust …

Should The States Return To Worldwide Combined Reporting?, Reuven S. Avi-Yonah

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On February 20 the Institute on Taxation and Economic Policy (ITEP) released a report on the revenue implications of states adopting worldwide combined reporting (WWCR). WWCR refers to a method of taxation that several states (for example, California) applied from the 1970s to the 1990s. Under WWCR, the state takes the entire worldwide profit of a multinational operating in the state and multiplies it by a formula that traditionally combines payroll, tangible assets, and sales in the state divided by worldwide payroll, assets, and sales. The result is the amount of profit taxable in that state.

Nevadaware Divergence In Corporate Law, Wendy G. Couture

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The differences between Nevada and Delaware corporate law - which I call "Nevadaware divergence" - are the subject of media attention, scholarly critique, and current litigation. Nevada corporate law has a reputation as being a no-liability Zone where officers and directors are free to defraud stockholders without consequences. My goal in this article is to inform a more fulsome understanding of Nevada corporate law, both substantively and theoretically, as compared to Delaware corporate law). Starting with the premise that Nevada corporate law is more nuanced than common wisdom suggests, I highlight Nevadaware divergence - not only about substantive corporate law-but …

Strong Democracies Need Reliable Citations, Margie Alsbrook

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Legal systems must hold the trust of citizens in order for democracies to survive. Unfortunately, the American legal system is suffering from an unprecedented credibility crisis. Analyses of the roots of this problem have largely focused on political causes, with blame going to an array of issues ranging from the partisan nature of the judicial appointment process to the lack of ethical oversight for judges with lifetime appointments to the bench.

Thus far, scholarly articles analyzing the modern erosion of precedent have generally examined precedent from political or subject-matter-specific perspectives. This Article takes a more universal approach by discussing the …

Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

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Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor …

U.S. Territories And The Criminal Law Curriculum, Emmanuel H. Arnaud

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No abstract provided.

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

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Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …