Digital Commons Network^™

Standing's Fourth Prong, F. Andrew Hessick

Faculty Publications

This response argues that the Supreme Court’s familiar three-part test for Article III standing fails to capture an important principle underlying the Court’s actual decisions: that the cause of a plaintiff’s injury matters, not merely the existence, traceability, and redressability of that injury. Responding to Ernest A. Young’s proposal, in Uncertain Enforcement and Standing to Sue, 106 B.U. L. Rev. 915 (2026), to broaden standing for pre-enforcement challenges by treating behavioral changes caused by an allegedly unconstitutional law as cognizable injuries, this response agrees that Young’s approach satisfies standing doctrine as formally articulated but doubts that the Supreme Court …

Reverse Discrimination And Other Racial Projects, Osamudia James

Faculty Publications

The U.S. Supreme Court’s decision in Ames v. Ohio Department of Youth Services abandoned historical context when assessing discrimination allegations, thus clearing remaining obstacles to reverse discrimination lawsuits. Reverse discrimination claims challenge equal protection jurisprudence, presenting whites as victims of racial subordination in claims that can be difficult to adjudicate if historical context is no longer a litmus test. Reverse discrimination claims also function as a white racial project—an attempt to represent and explain white racial identity in ways that redistribute societal resources to reflect a racial hierarchy that still benefits whites. A white racial project, however, is not unique. …

"For Their Benefit": The Lost History Of Parental Consent And Minors' Rights, Naomi Cahn, Maxine Eichner, Mary Ziegler

Faculty Publications

The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.

Drawing on archival material housed at six different universities, we make sense …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

The Specter Of Jury Nullification, Anna Offit

Faculty Publications

Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its legitimacy. To prosecutors and defense attorneys, however, these arguments are immaterial: Jury nullification is part of the institutional landscape of the contemporary jury trial and thus must be treated as a potentiality—a feature of the agnostic, strategic, and ethical terrain of …

Gambling Away Stability: Sports Betting’S Impact On Vulnerable H, Scott R. Baker, Justin Balthrop, Mark J. Johnson, Jason Kotter, Kevin Pisciotta

Faculty Publications

We estimate the causal effect of online sports betting on households’ investment, spending, and debt management decisions using household transaction data and a staggered difference-in-differences framework. Following legalization, sports betting spreads quickly, with both the number of participants and frequency of bets increasing over time. This increase does not displace other gambling or consumption but significantly reduces savings, as risky bets crowd out positive expected value investments. These effects concentrate among frequent bettors and low-savings households. Our findings highlight the potential adverse effects of online sports betting on vulnerable households.

Does Voluntary Manslaughter Exist In South Dakota?, Gregory Brazeal

Faculty Publications

The American legal tradition generally distinguishes between cold-blooded, premeditated intentional killing and hot-blooded, spontaneous intentional killing. The former has traditionally been categorized as murder and the latter as the lesser crime of “voluntary manslaughter.” South Dakota’s homicide statutes, interpreted based on their plain meaning, depart from this deeply rooted tradition. The closest equivalent to the crime of voluntary manslaughter appears in South Dakota’s first-degree manslaughter statute, which includes a prohibition on homicide “[w]ithout any design to effect death . . . and in a heat of passion, but in a cruel and unusual manner.” The phrase “heat of passion” suggests …

Using Network Models To Understand Biological Signaling Architecture, Russ White, Emily Brown Reeves, Gerald L. Fudge

Faculty Publications

Engineers have developed abstract network models to better understand the recurring problems faced by communication systems. This paper argues that these models can be generalized to describe biological communications systems given that they share many requirements with human-designed systems, including functional requirements and physical constraints. Leveraging collaboration, biologists and engineers can work together to use well-understood communication systems, designed to carry data across a computer network, as a model for analyzing less well-understood biological communication systems in order to make predictions and uncover previously unknown functionalities. To illustrate this approach, we apply the Recursive Internet Network Architecture model (RINA) to …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …

Audit Guides And The Administrative State, Joshua D. Blank, Leigh Osofsky

Faculty Publications

Scholars are engaged in deep debate about the transformative power of recent Supreme Court cases that appear to limit the role of agencies in making rules of law. In Loper Bright Enterprises v. Raimondo and West Virginia v. EPA, the Supreme Court overruled a longstanding doctrine of judicial deference to agency rules and prescribed more boundaries around the scope of such rules. Scholars have debated to what extent these changes will usher in new forms of judicial review that will transfer power from agencies to the courts.

This Article argues that this debate misses important elements of where agency …

Financial Statecraft, Graham S. Steele

Faculty Publications

The purse is mightier than the sword. In recent decades—from the Cold War to the War on Drugs to the War on Terror to Russia’s invasion of Ukraine—financial institutions have increasingly become the conduits for the United States government’s foreign policy. This Article argues there are deep and under-appreciated connections between the use of money and credit to influence geopolitics, which this Article terms “financial statecraft,” and the goals of financial regulation.

This Article begins by establishing a framework for understanding the partnership between banks and the government in service of financial statecraft. Next, this Article engages in a critical …

Gendered Words And Patent Grant Rates: A Textual Analysis, Deborah R. Gerhardt, Miriam Marcowitz-Bitton, W. Michael Schuster, Avshalom Elmalech, Omri Suissa, Moshe Mash

Faculty Publications

Text is a vehicle to convey information that reflects the writer’s linguistic style and communication patterns. By studying these attributes, we can discover latent insights about the author and their underlying message. This article uses such an approach to better understand patent applications and their inventors.

While prior research focuses on patent metadata (i.e., filing year or gendered inventor names), we employ machine learning and natural language processing to extract hidden information from the words in patent applications. Through these methods, we find that inventor gender can often be identified from textual attributes—even without knowing the inventor’s name. This ability …

Who's Afraid Of Copyright And Ai?, Deborah R. Gerhardt

Faculty Publications

Copyright and AI need not be a copyright no man’s land. Recent decisions by the Copyright Office have gotten so much media attention that many creators are unsure if they can secure copyright protection if they use AI as a creative tool. The proposed creative control paradigm can help us all tackle the challenge of determining when works created with the assistance of AI are copyrightable. Instead of relying on long-established nuanced precedent for protecting works generated with new technology, the Copyright Office asserts that any content generated with assistance from AI tools is unprotectable. This position is radically inconsistent …

The Inevitable Vagueness Of Medical Exceptions To Abortion Bans, Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith, Amy G. Bryant

Faculty Publications

In the aftermath of the 2022 U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization removing federal constitutional protection for abortion, twenty states currently significantly restrict access to abortion. These state laws all include exceptions for the life of the pregnant person; most also exempt significant impairments to the pregnant patient’s health. Despite these exceptions, repeated accounts in the press and in court cases have shown pregnant patients in significant medical need being denied abortion care, resulting in serious injuries and, in some cases, death. The reasons for this denial of care, though, are disputed. Physicians have contended …

Ecowas: The Little Human Rights Organization That Could, Thomas Kelley

Faculty Publications

Part I of this Article provides a detailed description of the origins of the Economic Community of West African States (ECOWAS). Part II describes its transformation from a sleepy trade bloc to a dynamic peace and security and human rights enforcement institution. Part III examines arguments about whether ECOWAS’s aggressive human rights enforcement is or is not legal under international law. Part IV summarizes developments in West Africa after ECOWAS created its robust peace and security and human rights enforcement architecture, concluding that, until the recent crisis in the Sahel States, it has been extremely effective despite the scant resources. …

Judgment Holders In Sovereign Debt Restructurings, W. Mark C. Weidemaier, F. Andrew Hessick

Faculty Publications

Sovereign bond restructurings depend on collective voting mechanisms called Collective Action Clauses (CACs) in bond contracts. CACs let a bondholder supermajority modify the bond and bind dissenters to the outcome. But what if dissenters can avoid being bound by rushing to court and getting a judgment? Existing analyses suggest that the legal doctrine of merger and bar might cause the CAC to “merge” into a court’s judgment, effectively allowing judgment holders to escape the restructuring. Other bondholders would be unable to stop judgment holders from enforcing their judgments. Policymakers have long worried that this risk might undermine the contractual architecture …

Mass Corporate Governance, Caleb N. Griffin

Faculty Publications

Democracy is a compliance cost. At least, that is the modern conception of performative corporate governance. Structurally contingent legal and market characteristics mean that shareholder voting is now conducted with an unusual combination of zealous devotion to the voting process and general ambivalence as to substantive outcomes.

This dynamic arises because financial and voting rights are routinely decoupled, resulting in a fundamental transformation of the incentives, constraints, and power dynamics through which the world’s largest corporations are governed. The ironic result is that the governance actors with the greatest power often have little incentive to use it. Regulators have “solved” …

The Police Archipelago: Decentralization, Police Violence, Over-Punishment, And Crime, José F. Girón

Faculty Publications

A strong consensus has taken hold in the legal academy. Criminal Justice Localism, espoused by scholars of every stripe, promotes greater local control of every facet of the criminal justice system. But Criminal Justice Localism largely overlooks an institution that plays a critical role in the criminal justice system, and which has been the subject of intense public criticism: the police. That oversight is remarkable for two reasons. First, calls for increased local control of the police seem to ignore that America operates one of the most—if not the most—decentralized policing models in the world, with its thousands of local, …

Serum Protein Signatures For Breast Cancer Detection In Treatment-Naïve African American Women Using Integrated Proteomics And Pattern Analysis, Padma Tadi Uppala, Elmer Rivera, Hyun J. Kwon, Sharon S. Lum

Faculty Publications

Breast cancer is the leading cause of cancer-related mortality in African American (AA) women. In this study we evaluated the serum proteomic profile of AA women with breast cancer using an integrated proteomic framework with multivariate pattern analysis. Using 2D-DIGE, thousands of serum protein spots were detected across 33 gels; 46 spots met criteria for presence, statistical significance, and differential expression. Proteins from the spots were identified by MALDI-TOF/TOF and matched in curated databases, highlighting serum biomarkers including ceruloplasmin, alpha-2-macroglobulin, complement component C3 and C6, alpha-1-antitrypsin, alpha-1B-glycoprotein, alpha-2-HS-glycoprotein and haptoglobin-related protein. LC-MS/MS analysis revealed 163 differentiating peptides after imputing and …

Prophetic Preaching As A Tool For Social Justice, Trevor A. O'Reggio

Faculty Publications

No abstract provided.

Participation, Danielle M. Pillet-Shore

Faculty Publications

What does it take to participate in direct, naturally occurring social interaction? Conversation analytic (CA) studies reveal that “participation”—who participates, when, and how—is dynamic and locally, multimodally achieved by the people involved. Particularly in social situations when people are concurrently accessible to one another’s naked senses (Goffman, 1964), co-participation is enabled and performed through embodied and vocal resources including talk, gaze, facial displays, body orientation/posture, proximity, and gestures (e.g., M. H. Goodwin, 1999; C. Goodwin & M. H. Goodwin, 2005; Pillet-Shore, 2010; Sidnell, 2009). Using a multimodal CA lens, this chapter illuminates how “participation” is achieved in real-time, naturally occurring …

Workshop Outcomes Report: 2nd International Workshop On Seismic Resilience Of Arctic Infrastructure And Social Systems, Majid Ghayoomi, Daniela Morganti

Faculty Publications

The report provides an overview of the second international workshop on Seismic Resilience of Arctic Infrastructure and Social Systems. The report discusses agenda, workshop activities, interdisciplinary working groups, and results. It ends with several strategic questions and investigation plans that were developed as part of the workshop activities.

Governing By Fragments: Soviet Ruins And The Architecture Of Unaccountability In Kazakhstan, Robert A. Kopack, Magdalena E. Stawkoski

Faculty Publications

This article examines two case studies in Kazakhstan with research into how Soviet institutional legacies underwrite extractive economies that render toxic costs invisible in post-Soviet setting. Through ethnographic work in Stepnogorsk (uranium processing) and the Semipalatinsk Test Site (nuclear weapons testing), we extend Gabrielle Hecht’s residual governance framework to demonstrate how inherited bureaucratic compartmentalization now serves market rather than state interests. We introduce the concept of functional nonreform to describe how distributed actors maintain Soviet-era boundaries that prevent accountability: Agencies monitor but don’t enforce, health authorities lack jurisdiction over contaminated sites, and environmental agencies measure radiation but cannot restrict land …

Effects Of Density Turbulence On Helicon Wave Propagation In The Core Plasmas, Eun-Hwa Kim, Syun'ichi Shiraiwa, Seung-Hoe Ku, A. Bortolon, Masayuki Ono, Nicola Bertelli, Robert I. Pinsker

Faculty Publications

No abstract provided.

The Trademark Bargain: Registration As Disclosure, Dustin Marlan

Faculty Publications

This Article highlights the central—and under-theorized—role that disclosure plays within trademark law. By loose analogy, the patent disclosure requirement is a cornerstone of patent law, embodying the “patent bargain” where an inventor must disclose their invention in exchange for a twenty-year monopoly. This quid pro quo is believed to stimulate the progress of science and technology, making patent disclosure the very pulse of the patent regime. However, the fundamental importance of disclosure in trademark law remains underexplored. Like patents, trademark law imposes a rigorous bargain—to obtain the enhanced rights granted by federal registration, trademark owners must first make significant disclosures …

A First Amendment Right To Know, David S. Ardia

Faculty Publications

This Article tackles an increasingly important question: Can police round up people on American streets and keep secret the names of those they detain without violating the First Amendment? Alarmingly, the government made this very argument in the summer of 2020 when it sought to break up Black Lives Matter protests occurring in cities across the country. Based in part on a Supreme Court decision from the 1970s involving access to prisons, the government argued that the First Amendment imposes no constraints on government secrecy. If it is true that the government can shield its exercise of police power from …

Tradition Without Text?, Daniel B. Rice

Faculty Publications

This Essay critiques the Supreme Court’s emerging “history and tradition” methodology, as articulated in Dobbs v. Jackson Women’s Health Organization, arguing that its reliance on affirmative textual recognition in historical positive law fundamentally misrepresents the nature of American liberty traditions. By insisting that unenumerated rights are constitutionally cognizable only when earlier legal sources explicitly identified them as rights, the Court adopts a truncated evidentiary framework that privileges written enactments while disregarding lived experience, social practice, and the normative assumptions that shaped earlier understandings of permissible state power. The result, the Essay contends, is a mechanized and impoverished account of …

Desperation Finance: Merchant Cash Advances In Bankruptcy And Beyond, Kara J. Bruce

Faculty Publications

Over the last several years, Merchant Cash Advances (“MCAs”) have risen in prominence as a form of short-term financing for distressed small businesses. MCA transactions are distinct from most small-business lending because they are not structured as loans at all. Rather, in exchange for a lump sum of cash, the merchant purports to sell to the funder an unidentified percentage of its future receipts or receivables. This structure allows funders to sidestep the application of lending regulations and usury protections, but it strains the foundations of commercial law and generates a host of interpretive challenges.

Bankruptcy, district, and circuit courts …

Limits On Damages For Breach Of A Forum Selection Clause, John F. Coyle, Tanya Monestier

Faculty Publications

When a plaintiff sues in a court other than the one designated in a forum selection clause, the defendant’s remedial options are limited. It can ask the court to dismiss the case outright. Or it can ask the court to transfer the case to the designated forum. The defendant typically cannot, however, recover money damages—in the form of attorneys’ fees and related expenses—that it incurs in the course of persuading the court that transfer or dismissal is appropriate. This is because the conventional wisdom among judges has long been that damages are not available for breach of a forum selection …