Digital Commons Network^™

Knowledge Held Hostage: What The British Library Ransomware Attack Can Teach Us, Moira Fiscus

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The British Library hack and its response serve as a clear example of the vulnerability of institutions of higher learning to such attacks and the importance of maintaining an open dialogue with the public during recovery. This open dialogue is currently lacking as universities attempt to move on and cover up these attacks quickly. This paper aims to start the conversation by providing three examples of institutions that went through a hack that left their services down for a significant period, how it affected those they serve, how these institutions responded, and what information was made public.

15th Anniversary Edition: Dear Readers, Peter A. Carfagna

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No abstract provided.

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

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This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)-including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds-in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

Schrodinger's Dissent: The Hybrid Authority Of A Dissenting Opinion, Christina Frohock

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A dissenting opinion is the Schrodinger's cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and …

Systemic Regulation Of Artificial Intelligence, Yonathan Arbel, Matthew Tokson, Albert Lin

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Today's artificial intelligence ("AI") systems exhibit increasing capabilities across a remarkable variety of tasks. The rapid growth in AI ability has caught the attention of policymakers, parliaments, and the United Nations. These entities are increasingly looking towards regulating AI, not only in its particular applications, but as a technology. Yet legal scholarship has thus far offered little to this new and critical regulatory conversation, which has instead been dominated by computer scientists and technologists.

This Article begins the project of assessing AI's broader risks and law's role in addressing them. These risks are wide ranging -they span harms to vulnerable …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

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In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Consumer Litigant Finance And Legal Ethics: Empirical Observations From Texas, Anthony J. Sebok, Lynn A. Baker

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A handful of states, including Texas, have Rules of Professional Responsibility which permit attorneys to provide cash advances to their own clients. In previous work, we suggested that if more states permitted law firms to offer this sort of funding to their clients it would increase competition within the consumer litigant funding market, to the benefit of consumers. We also hypothesized that relaxing these existing prohibitions would better enable tort claimants to decline low-ball settlement offers from defendants in one-off cases.

This Article offers some initial insights into these questions. It reports the findings of our modest empirical study involving …

Are Exit Taxes Discriminatory?, Reuven S. Avi-Yonah

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In a recent column, Tax Notes’ Robert Goulder analyzed case law in Europe on the constitutionality of exit taxes. Many EU member states impose exit taxes on individual residents who move to lower-tax jurisdictions, but the Court of Justice of the European Union has repeatedly struck them down as inconsistent with freedom of movement unless they allow for deferral until realization or death with no interest charge, which is equivalent to having no exit tax at all. Goulder cogently argues that this issue is similar to the Moore problem in the United States, especially since the U.S. exit tax on …

Investigation Of The Uv-Resistance Of Photopolymerisable Glass For Space Applications, Luca Sorridente, Tatsiana Mikulchyk, Izabela Naydenova, Kevin Murphy

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The progress of space based scientific research leads to an increasing demand for more efficient and less bulky instruments. Conventional refractive elements make up a critical part of many optical instruments launched into space; however, they can be bulky and heavy. Holographic optical elements are an efficient alternative to replace the conventional optical elements as they are lightweight and can be miniaturized. Current materials typically used for volume holographic optical elements are not robust enough for use in space environment. Recently a promising photopolymerisable glass has been developed using a sol-gel technique, which can provide dry layers suitable for holographic …

Microglial Piezo1 Mechanosensitive Channel As A Therapeutic Target In Alzheimer's Disease, Erol D Ikiz, Erin R Hascup, Chilman Bae, Kevin N Hascup

Articles

Microglia are the resident macrophages of the central nervous system (CNS) that control brain development, maintain neural environments, respond to injuries, and regulate neuroinflammation. Despite their significant impact on various physiological and pathological processes across mammalian biology, there remains a notable gap in our understanding of how microglia perceive and transmit mechanical signals in both normal and diseased states. Recent studies have revealed that microglia possess the ability to detect changes in the mechanical properties of their environment, such as alterations in stiffness or pressure. These changes may occur during development, aging, or in pathological conditions such as trauma or …

Photopolymer Material Durability And Safety In Holographic Diffusers For Visual Applications, Matthew Hellis, Alan Casey, Edoardo Splendi, Suzanne Martin, Matthew Sheehan, Kevin Murphy

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This study introduces novel holographic diffuser applications employing acrylamide- or diacetone acrylamide-based photopolymers, patterned within the volume on a micron scale by a single-beam holographic recording process. These diffusers have previously been presented as potential treatments for amblyopia and diplopia. This work has now been extended to spectrometric analysis to determine their properties under broadband light. Diffusive elements with higher diffusion efficiencies exhibited a marginal reduction (< 5%) in diffusion efficiency across most of the visible spectrum. Given the intended application of these holographic diffusers, cytotoxicity assessments were also performed. This is significant as there is a difference in toxicity between the crystalline acrylamide (classified as a category 3 material) and diacetone acrylamide (classified as a category 4 material). The findings indicated substantially lower toxicity in holograms produced with diacetone acrylamide-based photopolymer. The accelerated ageing of both formulations of holographic diffusers indicated that the acrylamide-based holographic diffusers did not reduce efficacy in the 292 days of ageing. The diacetone acrylamide-based holographic diffusers exhibited reduced efficacy by day 182. Despite this, both formulations have been shown to perform for prolonged periods as the treatment modality would require. These results emphasise that holographic diffusers exhibit minimal spectral impact, and longevity on the scale of treatment regimes which are crucial considerations for their prospective use case as treatments for amblyopia and diplopia.

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

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This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

The Administrative Procedure Act Problem Reconsidered, Reuven S. Avi-Yonah

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Tax Notes contributing editor Ryan Finley’s excellent article on the 3M case1 and the Administrative Procedure Act provides an opportunity to reconsider the damage done to tax law by taxpayers constantly invoking the APA to invalidate regulations or IRS notices.

Now You Have It, Now You Don’T: Taxing Crypto, Part 2, Reuven S. Avi-Yonah

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In “Coinbase: Are Cryptoassets Securities?” Tax Notes contributing editor Lee A. Sheppard highlights a recent district court decision indicating that some forms of cryptoassets are securities for securities law purposes and therefore fall under the jurisdiction of the SEC:

There are potential tax ramifications. Some, indeed many, cryptoassets could be securities under the securities law. That means that losses can’t be recognized on wash sales (section 1091). The IRS should issue a notice stating that many cryptoassets other than bitcoin are securities, so losses on wash sales can’t be recognized. A notice would not be a heavy lift. The taxpayers …

Digital Barter Taxes Are Good Tax Policy, Young Ran (Christine) Kim, Darien Shanske

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This short essay, aimed at state legislators, argues that digital barter taxes are good tax policy.

The Broader Lessons Of Privacy Law, Salome Viljoen

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This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Now You Have It, Now You Don’T: Taxing Crypto, Part 1, Reuven S. Avi-Yonah

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The latest rise in the value of bitcoin has rekindled the debate on whether cryptocurrencies perform a useful function. For example, a recent article in the Financial Times argued: Have we learnt the lessons from the disastrous 2022 crash in digital assets? To judge from recent action in the crypto market, the answer appears to be no. Since hitting bottom after FTX collapsed into bankruptcy with a $9bn-ish hole in its balance sheet in November 2022, crypto market values have roughly tripled. Bitcoin’s price rose above $70,000 this week to touch record highs. A new wave of enthusiasm is growing, …

Let Us Feast! The Long Tradition Of The Feast And How It Has Featured Through Time In Literature And Film, Anke Klitzing

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Why do we celebrate so often with good food? Festive meals are as ancient as they are contemporary, and have featured in books, films and stories since we began to tell them, from Beowulf to Big Night (1996). Feasts strengthen interpersonal and communal bonds, but also offer the chance to showcase wealth and generosity; however, being a host can be a challenge as well.

Raising The Bar: The Nextgen Bar Exam And Contract Drafting, Susan M. Chesler, Karen J. Sneddon

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Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (“NCBE”), this exam is designed “to balance the skills and knowledge needed in litigation and transactional legal practice.” More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like …

Modeling Redistribution Of Nanozeolites In Holographic Recording, Dana Mackey, Jack Lyons Dr, Izabela Naydenova

Articles

Zeolite doped photopolymers have been studied experimentally due to their potential application in the develop- ment of optical sensors. It has been shown that dopant redistribution can be achieved by holographic recording and has a direct influence on the sensitivity of the recorded grating. To achieve better theoretical understanding of these processes, this paper proposes an extended photopolymerization-diffusion mathematical model for describing the dynamics of nanozeolite redistribution during recording in an acrylamide-based photopolymer. Using numerical simulations of this model, we investigate how recording conditions, dopant transport parameters, and initial load affect the refractive index modulation of the resulting photonic structure.

Cognitive Impairment In The Primary Care Clinic., Cindy L Womack, Andrea Perkins, Jennifer M Arnold

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Cognitive impairment is a common problem in the geriatric population and is characterized by variable symptoms of memory difficulties, executive dysfunction, language or visuospatial problems, and behavioral changes. It is imperative that primary care clinicians recognize and differentiate the variable symptoms associated with cognitive impairment from changes attributable to normal aging or secondary to other medical conditions. A thorough evaluation for potentially reversible causes of dementia is required before diagnosis with a neurodegenerative dementia. Other abnormal neurologic findings, rapid progression, or early age of onset are red flags that merit referral to neurology for more specialized evaluation and treatment.

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

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Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

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The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Trade Law Policing On The Factory Floor: Next Generation Agreements And Their Corporate Accountability Tools, Kathleen Claussen

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Trade policymakers' increased attention to sustainability has prompted the development of trade tools focused on corporate accountability within international trade agreements. As evidenced by the creation and use of the United States-Mexico-Canada Agreement's Rapid Response Labor Mechanism, this institutional shift has potent implications for labour rights and environmental protections. This article, which transcribes a lecture delivered at the Lauterpacht Centre in October 2023, scrutinises the turn toward supply-chain policing within international trade law and its institutional, legal, sociological, rhetorical and disciplinary effects.

Water Management And Conservation In India Fostering Water Justice: Arguing For Adopting Just Sustainability In Water Governance, Gayathri D Naik Dr, Sanjay Shenoi P

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The water sector is characterised by everyday water injustices where factors like social discrimination, economic disparities, and political preferences influence the determination of water resource access, allocation, and management. The increasing anthropogenic impacts on water resources and consequent threats to sustainability add to the water injustices, often impacting the poorer, socially downtrodden communities that bear the brunt of water scarcity and cannot afford alternatives. The current water governance patterns, prioritising equality over equity, fail to address the issues of water injustices created by social, political, and economic factors in water management and sideline the ecological impacts on water resources. Moving …

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

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In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Redistributing Justice, Benjamin Levin, Kate Levine

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This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Subjective Beliefs About Contract Enforceability, J. J. Prescott, Evan Starr

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This article assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (noncompetes). We demonstrate that employees tend to believe that even clearly unenforceable noncompetes are enforceable, including their own. We provide evidence for both supply- and demand-side stories that explain employees’ persistently inaccurate beliefs. Moreover, we show that believing that unenforceable noncompetes are enforceable likely causes employees to forgo better job opportunities and to perceive that their employer is more likely to sue them if they choose to compete. Finally, we use an information experiment to inform employees …

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

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The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

Feedback Loops: Upward Appreciation., Patrick Barry

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When was the last time you tried to make your boss feel welcome? Last week? Last month? Never?

How about the last time you tried to make one of your mentors feel welcome? Your mom? Your dad? A particularly helpful pastor, rabbi, imam, or other religious leader?