Digital Commons Network^™

Prompting As A New Medium: Greenbergian Medium Specificity And The Iterative Unpredictability Of Ai Art, Samantha Shapiro, James Hutson

Faculty Scholarship

This article argues that AI prompting should be understood not as a tool, technique, or accessory to image generation, but as a medium in its own right. Drawing on Clement Greenberg’s theory of medium specificity, it contends that a medium becomes legible through the operations peculiar to itself, namely, the constraints, affordances, and formal procedures that distinguish it from neighboring arts. Existing scholarship has asked whether prompting counts as art, whether prompt engineering constitutes a creative skill, and whether the prompt itself can be aesthetic; however, these accounts often stop short of a sustained theory of prompting as medium. This …

The Eviction Caste System, Allison Freedman

Faculty Scholarship

The United States is facing a dire housing crisis, and most Americans agree that housing is a universal necessity. Yet under current Supreme Court jurisprudence, housing is not a fundamental right, and individuals facing housing insecurity from an eviction are generally not members of a suspect class. This is because eviction is often viewed as an individual problem and a symptom of poverty, which the Supreme Court has repeatedly affirmed is not a suspect classification. This Article disrupts the superficial narrative that eviction is an individualistic symptom of poverty, and instead views evictions from a systemic and historical perspective. It …

Revocation Reconsidered: Probation Advocacy Through A Litigation Lens, Shira M. Diner

Faculty Scholarship

Being found in violation of probation has dire consequences. The person found in violation can be imprisoned, upending them from their job, family, and community. Unlike incarceration after a criminal trial, a sentence after a violation of probation is not the result of a legal process characterized by robust due process protections. It is also often not the result of a forceful and thorough defense. It is instead the consequence of a hearing where lawyers with the fixed mindset of an inevitable finding of a violation don’t engage in the same preparation that they would if it was a trial. …

Black Labor Matters, Michael Z. Green

Faculty Scholarship

Black and organized workers increasingly find themselves threatened by two key outside forces: one seeking to stop anti-racism efforts via diversity, equity, and inclusion (DEI) practices and the other curtailing employees’ union organizing. This Article argues that a response must be grounded in uniquely local strategies by two specific worker coalitions. One coalition–the New Black Workers Movement (NBWM)–arose from Black Lives Matter civil rights protests in 2020 that captivated the workplace and heightened awareness about anti-Blackness and concerns of systemic racism. The other coalition–the New Labor Workers Movement (NLWM)–developed in 2020 as a workplace response to a global pandemic that …

Climate Lies And Unjust Profits, Vanessa Casado-Pérez, Yotam Kaplan, Yael Lifshitz, Niv Meyerson

Faculty Scholarship

The climate crisis has reached a perilous tipping point. Our entrenched reliance on fossil fuels remains unchecked, as fossil fuel corporations wield their power to block meaningful reform and entrench their profits. The political horizon offers little relief—an incoming administration is poised to dismantle vital environmental protections, stripping away the few safeguards that stand between us and climate catastrophe.

In this grim landscape, communities across the nation are turning to the courts with renewed urgency, seeking justice and reform through climate litigation. Yet past efforts have fallen short, stymied by two formidable barriers. First, by centering on greenhouse gas emissions …

Plea Bargain Skepticism When Companies Kill People, Peter R. Reilly

Faculty Scholarship

In 2018 and 2019, two Boeing 737 MAX airplanes fell from the sky, killing 346 people—one of the deadliest corporate crimes in U.S. history. Instead of taking the case to trial, the United States Department of Justice (“DOJ”) addressed the matter by using two different alternative dispute resolution vehicles. First, Boeing was given a three-year deferred prosecution agree-ment. That deal was canceled when DOJ determined the company had breached it. Next, Boeing was given a plea bargain. This Article argues that federal courts, which are empowered to approve or reject plea deals, should be skeptical when the government turns to …

Fifty Ways To Leave Your Lover: Using State Constitutions To Escape The Dead Hand Of Article V, Meg Penrose

Faculty Scholarship

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

Defining Civil Rico's "Injury To Business Or Property" Requirement: The Supreme Court Takes A Few Steps, Says It Punts, But Actually Fumbles, Randy D. Gordon

Faculty Scholarship

Throughout its history, the RICO statute has presented lawyers with something of an interpretive parlor game. It is indefinite along multiple dimensions and thereby given multiple interpretations, even down to the word level. In Medical Marijuana v. Horn, the Supreme Court set out to define one of RICO's civil-standing provisions: Namely, whether the statute's "injury to business or property" requirement can be satisfied when a plaintiff suffers both economic and personal injuries. In a 5-4 decision, members of the Court engaged in an interpretive battle over the meaning of the phrase and succeeded only in holding that civil RICO does …

The Unitary Executive And The Federal Reserve, Lev Menand

Faculty Scholarship

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation — known as the unitary executive theory (UET) — would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the …

Metrics Not Thresholds: How To Regulate Ai And Other Expert Methods For Use In Criminal Investigations And Proceedings, Rebecca Wexler

Faculty Scholarship

Should regulators set performance thresholds for AI tools used in the criminal legal system? This Article draws on U.S. evidence law for guidance. Its answer is ... don’t. Instead of gatekeeping with ex ante performance thresholds, regulators should require or incentivize metrics of reliability that can be clearly communicated to end-user decisionmakers.

Sticky Charters? The Surprisingly Tepid Embrace Of Officer-Protecting Waivers In Delaware, Jens Frankenreiter, Eric L. Talley

Faculty Scholarship

This article examines the response to Delaware’s much-heralded 2022 legal reform that permitted corporations, for the first time, to adopt charter provisions exculpating corporate officers from liability for breaching their fiduciary duty of care. Contrary to widespread predictions that corporate actors would swiftly adopt officer exculpation provisions, our analysis — using both traditional and generative artificial intelligence (AI) methods — reveals a surprisingly low rate of uptake, over three years after the reform’s enactment.

Our study makes both methodological and substantive contributions. Methodologically, we present a novel application of large language models (LLMs) to identify and interpret technical clauses in …

U.S. Shareholder Activism: Convergence With Japan, Nobuhisa Ishizuka

Faculty Scholarship

To many observers long accustomed to slow, incremental change, the current boom in shareholder activism in Japan comes as a surprise. The opening for U.S.-style activists was created by market conditions that eventually resulted in policy changes that attracted significant numbers of foreign investors. However, even the current market would not have emerged without a parallel evolution in U.S. hedge-fund tactics, which gradually shifted over a number of years to a sophisticated and more nuanced approach, one based on partnership and dialogue with target companies, in contrast to adversarial relationships and public campaigns. This article attempts to place current trends …

Maga's Blue State Strategy: How Democrats And University Leaders Helped The Reactionary Right Weaponize Antisemitism Against Higher Education, Jonathan Feingold, Isaac Kamola

Faculty Scholarship

The professors are the enemy. Professors are the enemy. Write that on the blackboard 100 times and never forget it.

—President Richard Nixon, 1972¹

[I]f any of us wants to do the things we want to do[,] . . . we have to honestly and aggressively attack the universities in this country.

—J.D. Vance, 2021²

October 7, 2023 was many things. One of those things was a lucky break for the Heritage Foundation (“Heritage”). For decades, Heritage and its allied think tanks, donors, and officials had labored to discredit and, if possible, take over higher education in the …

Foreword: The Universities Will Not Save Us, Jonathan Feingold

Faculty Scholarship

In the spring of 2024, thousands of university students joined campus protests advocating for Palestinian human rights and calling on their institutions to divest from Israel’s military assault on Gaza.1 The student action echoed historical protest movements that universities routinely celebrate in their brochures, monuments, and signage.2 Yet rather than embrace their students’ principled activism, universities across the country deployed militarized force against their own communities.3 From elite Ivies in the northeast, to large privates in the Midwest, to state schools in Texas and California, administrators greeted peaceful protest with discipline, smears, and physical violence.

How Ai Destroys Institutions, Woodrow Hartzog, Jessica Silbey

Faculty Scholarship

Civic institutions—the rule of law, universities, and a free press—are the backbone of democratic life. They are the mechanisms through which complex societies encourage cooperation and stability, while also adapting to changing circumstances. The real superpower of institutions is their ability to evolve and adapt within a hierarchy of authority and a framework for roles and rules, while maintaining legitimacy for the knowledge produced and the actions taken. Purpose-driven institutions built around transparency, cooperation, and accountability empower individuals to take intellectual risks and challenge the status quo. This happens through the machinations of interpersonal relationships within those institutions, which broaden …

Antidiscrimination, Not Anti-Dei: The Real Story Of The Supreme Court's Recent Title Vii Precedent, Madeline H. Meth

Faculty Scholarship

For several years, my colleague and I had been litigating employment discrimination cases with facts that shocked our friends and family. For example, we fought Dallas County over a women-work-the-weekend policy that required women detention officers to work weekends while male colleagues took the weekends off. Likewise, we challenged the City of Cleveland when it moved our client, an emergency medical services supervisor, from the day shift to the night shift explicitly because he is Black. Then, in April 2024, in one of our client’s cases, Muldrow v. City of St. Louis, the U.S. Supreme Court unanimously overruled the …

Governing The Energy Bottleneck, Hannah Jacobs Wiseman, Matthew Mchale

Faculty Scholarship

The electrical grid is falling short of its mandate to accommodate new generation—much of which happens to be “clean” zero-carbon generation—and to service load (demand). The bottleneck of grid access, which has vexed renewable energy developers, now affects industries seeking massive quantities of electricity to power single facilities— “large loads” such as data centers and other artificial intelligence operations.

Many of these highly capitalized loads seek clean energy generation; they could, in theory, fund an energy renaissance and provide scale-based benefits for all consumers. But loads that obtain service  are negatively impacting other consumers’ rates and, potentially, the reliability of …

Childhood, Likelihood, And Probative Value: A Further Call For Greater Probity And Less Childism In Evidence Law, Mae C. Quinn

Faculty Scholarship

No abstract provided.

Teaching Legal Research Students To Be The "Human In The Loop", Julie Tedjeske Crane

Faculty Scholarship

No abstract provided.

The Racial Implications For Black Claimants At The Federal Arbitration Act's Centennial, Michael Z. Green

Faculty Scholarship

On February 12, 1925, when President Calvin Coolidge signed into law an Act to make arbitration agreements "valid, irrevocable, and enforceable," no person could have expected that this new statute would ever apply to claims by Black litigants. A century later, that law, now referred to as the Federal Arbitration Act (FAA), has evolved to encompass disputes involving a broad array of claimants and processes where businesses enforce pre-dispute agreements to arbitrate. In examining whether Black claimants (businesses, consumers, and importantly, workers) may benefit from using arbitration, this Article investigates how the FAA, as enacted, never intended to address their …

Inexcuseable? Building An Artificial Intelligence Microexpert On Contract Excuse Doctrine, Mark Edwin Burge

Faculty Scholarship

This article details and advocates for a general methodology for creating a "microexpert" grounded in a user-defined set of legal sources and widelyaccessible tools for integrating generative artificial intelligence (AI) into legal analysis. The study focuses particularly on background contract excuse doctrines of impossibility, impracticability, and frustration of purpose, which are collectively a methodologically challenging area of law to rationalize due to factintensive variables that undermine their predictability. Particular challenges include assessing the foreseeability of the event that led to the contract's nonperformance, the extent of the hardship or burden on the party seeking excuse, and the purpose of the …

False Conflict: Colorblindness And Section 2 Of The Voting Rights Act, W. Kerrel Murray

Faculty Scholarship

If friends and foes of section 2 of the Voting Rights Act of 1965 agree on one thing, it is the irrepressible conflict between section 2’s attention to race and constitutional colorblindness.  They’re wrong.  Rightly understood, section 2’s design is remarkably compatible with colorblind constitutionalism’s letter and spirit.

To show how, this Article first returns to section 2’s origins and the preexisting approach its text codifies.  That approach had an underappreciated ethos:  When intentional discrimination’s effects sufficiently distort a political system, an electoral rule’s results might impugn its unconstitutionality, even if the rule had been adopted without discriminatory purpose.  Drawing …

How To Transform Capitalism Through Law, Katharina Pistor

Faculty Scholarship

This essay is based on the presentation of my book, The Law of Capitalism and How to Transform It, at the University of Miami Law School on October 14, 2025. I am grateful for the opportunity to share a summary of this work in the University of Miami Law Review and to my colleagues Ingo Venzke and Martijn Hesselink, who were kind enough to offer their thoughts on it for this mini symposium.

Agenda Control And Precedent, Thomas P. Schmidt

Faculty Scholarship

The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court’s powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal …

Thinking Constructively About International Law, Monica Hakimi

Faculty Scholarship

The international order that has defined the post-World War II period is being radically transformed, presenting a once-in-a-generation opportunity to reconstitute its basic foundations. The pressing questions for international lawyers are about the roles their enterprise can and should play going forward. I argue in this Article that most lack the analytic framework they need even to begin tackling these questions. Worse, most seem mired in an old theory about law that corrupts how they approach their enterprise. My goals in the Article are to expose the prevalence of this bad theory and to present the grounds for discarding it, …

Uncomfortably Reminiscent: Odonnell V. Harris County In History And Memory, Kellen R. Funk

Faculty Scholarship

In ODonnell v. Harris County, a federal trial court enjoined the misdemeanor bail system of Houston, Texas, freeing approximately 20,000 indigent defendants annually. To do this, the trial court drew upon Reconstruction era precedents establishing intensive federal oversight of state criminal proceedings. The court explicitly invoked the Civil War and Reconstruction transformation of the federal judiciary, comparing the County’s defenses to slavery era arguments. Conversely, when the en banc Fifth Circuit reviewed a similar order in Dallas, Texas, six years later, it rejected this historical framework, condemning such litigation as an impermissible “ongoing federal audit of state criminal proceedings.” …

The Territorial Continuum: American Samoa, Criminal Adjudication, And Territorial Administration, Emmanuel Hiram Arnaud

Faculty Scholarship

The standard account of American territorial expansion posits that territorial acquisition moved along a spectrum of sovereignty. The federal government acquired new inhabited land through conquest or purchase, and the Constitution tasked Congress with organizing and administering the new territories until they were ready to become states. That pattern came to an abrupt halt in 1898 when, at the conclusion of the Spanish-American War, the Supreme Court, fearing the extension of citizenship to, and the permanent integration of, non-White populations into the American polity, suddenly pronounced that the Constitution authorized the holding of colonies. The Court thus sentenced new territories, …

Access To Justice After Medina V Planned Parenthood South Atlantic, Daniel G. Aaron, Nicole Huberfeld

Faculty Scholarship

Access to justice is “the ability of all people to seek and obtain effective remedies through accessible, affordable, … and culturally competent institutions of justice.”¹ Historically, patients and physicians have worked together to protect the integrity of medical care as well as patients’ rights by challenging unlawful government actions in court. Yet the US Supreme Court recently issued decisions that may impede access to justice, potentially empowering federal, state, and local governments to interfere with evidence-based care. We explore constraints on access to justice that may arise after Medina v Planned Parenthood South Atlantic (PPSA) (606 US 357, 2025), …

The Business Of Ai-Producing Startups: Evidence From A Worldwide Survey, James Bessen, Stephen Michael Impink, Robert Seamans

Faculty Scholarship

We report results from a multi-year, worldwide survey of artificial intelligence (AI)-producing startups to describe the types of technologies, frameworks, data protection, and partnerships nascent firms use to develop their AI products. Analyses of our survey findings also inform how startups gather the resources to commercialize their AI applications in alignment with their entrepreneurial strategies, address competitive barriers, and respond to regulations. These data provide initial evidence of the perceived impact of these products on their customers’ tasks and industries, suggesting that these firms’ AI products not only reduce labor costs but augment human capabilities.