Digital Commons Network^™

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.

Liberty Global And The Revival Of Economic Substance, Reuven S. Avi-Yonah

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On April 21 the Tenth Circuit issued its long-awaited opinion in Liberty Global. By a 2-1 majority, the panel upheld the decision of the district court that a tax shelter used by Liberty Global had to be disregarded under the economic substance doctrine (ESD). This decision is the third victory of the government in ESD cases, following Patel and Otay. But it is the most significant because it strikes a decisive blow against tax shelters built on a literal application of the statutory text but ignore Congress’s purpose in enacting that text. Patel established that the ESD can be relevant …

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

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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 …

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

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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 …

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 …

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

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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 …

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 …

Tiger Global And Treaty Interpretation, Reuven S. Avi-Yonah, Poonam K. Sidhu

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The Indian Supreme Court’s Tiger Global decision has prompted extensive commentary, which has been generally critical. In particular, critics have noted that the decision marks a retreat from the permissive attitude toward treaty shopping adopted by the Indian Supreme Court in 2004. And critics have argued that the decision creates uncertainty because it applies the Indian general anti avoidance rule to an existing treaty in a fashion that amounts to a treaty override. Similar arguments were made against India’s application of the primary purpose test (PPT) to the Mauritius treaty. In our opinion, these critiques are exaggerated.

Can The Corporate Tax Be Delegated?, Reuven S. Avi-Yonah

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In Learning Resources Inc., the Supreme Court held by a 6-3 majority that President Trump lacked the authority under the International Emergency Economic Powers Act (IEEPA) to impose tariffs. The main rationale was that tariffs are taxes and that IEEPA only authorized the president to “regulate” imports, not to tax them. In his majority opinion, Chief Justice John Roberts wrote: But the facial breadth of “regulate” places in stark relief what the term is not usually thought to include: taxation. The U.S.

Code is replete with statutes granting the Executive the authority to “regulate” someone or something. Yet the Government …

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

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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 v 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 …

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

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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. …

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

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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

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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

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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 …

The Shame Of Mass Torts, Anthony J. Sebok

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No abstract provided.

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

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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

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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

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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 …

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

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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 …

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

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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 …

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.

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

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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 …

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

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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

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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. …

On The Scientific Stature Of Data Science: The Epistemological Unicorn, Ernest Fokoue

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Data Science has ignited unprecedented academic, industrial, and pedagogical fervor, yet its status as a \textit{science} in the classical sense---comparable to physics or biology---remains profoundly unsettled. This article interrogates the epistemological foundations of Data Science by examining its hybrid theoretical lineage, from the Universal Approximation Theorem to the No-Free-Lunch Theorems, with special emphasis on the fundamental Bayesian optimality results for both regression and classification. We argue that Data Science is in a vigorous \textit{gestational period}, characterized not by an absence of principles but by a creative tension between empirical pragmatism and deep mathematical theory. The Cross-Validation score emerges as the …

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

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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 …

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

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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 …