Digital Commons Network^™

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Communicative Administration: The Administrative State Beyond Legal Administration, Daniel E. Walters

Faculty Scholarship

On many dimensions, the administrative state is at the nadir of its power. The Supreme Court has tightened administrative law controls on agency power, and the Trump Administration has stormed the bureaucracy in an unprecedented blitz designed to kneecap agency capacity and independence. For better or worse, many agencies and their civil servants are being sidelined as meaningful actors in the administration of government. Yet this familiar account doesn’t tell the entire story. At the same time that agencies are being stripped of the power to implement law—what this Article calls “legal administration”— they are steadily accumulating extensive and largely …

Drug War Repairs Guarantees, Amber Baylor

Faculty Scholarship

Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

Moral Progress In Legal Doctrine, Philip Petrov

Faculty Scholarship

This article integrates the concept of moral progress – here, moral improvement in the thinking and behavior of individuals over time – into the study of legal doctrine. The article first presents a naturalistic account of what moral progress is and describes three of its most historically and analytically important forms: (1) moral circle expansion, (2) moral domain expansion, and (3) increasing sensitivity to proportionality. The article then analyzes three historical developments in U.S. tort law that qualify as instances of moral progress: (1) the partial demise of the “suicide rule” beginning around the 1980s (according to …

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Faculty Scholarship

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Skrmetti Beyond Scrutiny, Kate Redburn

Faculty Scholarship

In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care. For the first time, the Court considered a fundamental question in civil rights law: How does the Fourteenth Amendment regard transgender people? The Court gave little guidance. It did not sort out principles for deciding when anti-transgender discrimination classifies by sex, nor whether transgender people are a suspect class. Instead, the Court held that “[i]n the medical context, the mere use of sex-based language does not sweep a statute within the reach of …

The Pastor As Romantic Author: Ai, Preaching, And The Unacknowledged Inheritance Of Authenticity, Daniel Plate, James Hutson

Faculty Scholarship

This article interrogates contemporary reactions to sermons produced with generative technologies through a historical–conceptual lens, arguing that widespread judgments of such outputs as “soulless,” “generic,” or lacking a “beating heart” are best explained by an unacknowledged inheritance from nineteenth-century Romantic expressivism. Rather than treating resistance to machine authorship as a theological verdict on computational incapacity, the study reconstructs how Romanticism centered authorship in sincere self-expression and solitary genius, displacing earlier heraldic expectations that prized fidelity to a received message. Methodologically, the analysis combines intellectual history with discourse analysis of global Christian experiments in synthetic composition (2020–2025), denominational guidance, and media …

The Sec Proposed Cybersecurity Infrastructure Rules And New Disclosure Requirements, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

In addition to regulation of securities market issuers, the Securities & Exchange Commission (SEC) is also responsible for regulation of those entities that provide the networks, either electronic or physical, that enable the functioning of our securities markets. On February 9, 2022, the Commission published a Release for Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies containing proposals that, if adopted, would establish a new cybersecurity incident reporting and disclosure regime and require registered investment advisers (“advisers”) and investment companies (“funds”) to implement policies and procedures designed to address cyber risks. The comment period for …

Nato Self-Defense – Is Article 5 The Right Framework For Responding To Sub-Kinetic Cyber Aggression?, Shreyas Kumar, Gary D. Brown, Srividhya Ragavan, Maddalena Cerrato, Gourav Nagar

Faculty Scholarship

Cyber aggression presents a significant challenge to traditional frameworks of collective defense, particularly under Article 5 of the NATO Washington Treaty, which obligates member states to respond collectively to an "armed attack." While NATO has acknowledged that cyber incidents may trigger Article 5, ambiguity persists over what constitutes a cyber "armed attack," especially in the absence of kinetic effects. This uncertainty complicates NATO’s ability to address increasingly prevalent sub-kinetic cyber threats, such as economic disruption, data manipulation, and interference in democratic processes. Unlike conventional military threats, cyber operations often fall below the traditional threshold of armed conflict while still exerting …

The Financial Sector And Global Dollar System, Gary Gensler, Lev Menand, Joshua Younger

Faculty Scholarship

The second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Faculty Scholarship

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

Taking Revolution Seriously, Zohra Ahmed

Faculty Scholarship

Every so often, a prison strike will make national news, as it did in 2014, 2016, and 2018. ¹ The media will focus on the atrocious conditions of confinement; the unchecked violence; the wages numerated in pennies; and the state’s indifference to the strikers’ modest demands for food, medical care, and human contact.

Orisanmi Burton’s² book, Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt, urges us to process such reporting with a healthy dose of skepticism. What if prison rebellions were telling us something else, something even more important? What if they were …

The Dangerous Rise Of Dual-Use Objects In War, Oona A. Hathaway, Azmat Khan, Mara R. Revkin

Faculty Scholarship

Each day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as “dual-use” objects. Even though the term has become common, international law does not recognize a “dual-use” object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line …

Civilian Harm And Military Legitimacy: Evidence From The Battle Of Mosul, Benjamin Krick, Jonathan Petkun, Mara R. Revkin

Faculty Scholarship

The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peace building. However, the concept of “military legitimacy” remains under-theorized and its determinants poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the deadliest urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory using a mixed-methods design that combines original survey data, satellite imagery, and …

The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.

Faculty Scholarship

Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …

Die Wirkliche Gefahr Liegt In Der Erosion Der Autonomie: Ein E-Mail-Interview Über Kognitive Freiheit Und Die Problematische Nutzung Neuronaler Daten, Nita Farahany, James Kennaway, Bernd Bösel

Faculty Scholarship

In this interview, James Kennaway and Bernd Bösel talk to Nita Farahany about significant themes related to the idea of mind control, as discussed in her book "The Battle for Your Brain" (2023). The book outlines the risks that neurotechnology poses to "cognitive freedom". EEG and EMG data are increasingly used in consumer products, raising concerns about potential misuse. Companies and governments could exploit cognitive biometric data for manipulation or control. Farahany calls for clear legal protections and highlights differences between U.S. and European regulations. She warns of neurotechnological warfare and advocates for global bans. While full mind control remains …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

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 …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation, Srividhya Ragavan

Faculty Scholarship

Cost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best …

Ai Regulation Has Its Own Alignment Problem: The Technical And Institutional Feasibility Of Disclosure, Registration, Licensing, And Auditing, Neel Guha, Christie M. Lawrence, Lindsey A. Gailmard, Kit T. Rodolfa, Faiz Surani, Rishi Bommasani, Inioluwa Deborah Raji, Mariano-Florentino Cuéllar, Colleen Honigsberg, Percy Liang, Daniel E. Ho

Faculty Scholarship

Calls for regulating artificial intelligence (“AI”) are widespread, but there remains little consensus on both the specific harms that regulation can and should address and the appropriate regulatory actions to take. Computer scientists propose technical solutions that may be infeasible or illegal; lawyers propose regulation that may be technically impossible; and commentators propose policies that may backfire. AI regulation, in that sense, has its own alignment problem, in which proposed interventions are often misaligned with societal values.This Article assesses the alignment and technical and institutional feasibility of four dominant proposals for AI regulation in the United States: disclosure, registration, licensing, …

The International Legal Framework Of Oceanic Shipping Of Carbon Dioxide For Permanent Storage, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

The Intergovernmental Panel on Climate Change defines carbon dioxide capture and storage (CCS) as “a process in which a relatively pure stream of carbon dioxide (CO2) from industrial and energy-related sources is separated (captured), conditioned, compressed, and transported to a storage location for long-term isolation from the atmosphere.” Therefore, CCS encompasses a series of steps, at minimum: capturing carbon dioxide, its transportation to a storage site, and its injection into the subsurface for permanent storage. As such, CCS does not refer to any single activity or technology. This Article focuses on the transportation aspect of CCS and, more precisely, …

Regulating Shipping Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

A number of facilities intended for permanent sequestration of carbon dioxide are being developed in the United States. Several will be located on or near the coast of the Gulf of Mexico, making them easily accessible to ships. Meanwhile, in Europe there is substantial interest in capturing carbon dioxide from industrial operations, but currently inadequate sequestration facilities, and growing interest in shipping carbon dioxide for sequestration in the United States. This Article reviews the main U.S. federal laws applicable to transportation and geologic storage of carbon dioxide, including laws enacted to implement relevant international treaties. The Article also contextualizes its …

Technoculture And Language Models In Archaeology: Reconstructing And Preserving Cultural Narratives Through Digital Humanities, James Hutson

Faculty Scholarship

Technoculture, which examines the intersection of culture and technology, has increasingly permeated archaeological practice, transforming both scholarly research and public engagement [1-3]. The introduction of digital tools such as virtual reality (VR), geographic information systems (GIS), and large language models (LLMs) has democratized access to archaeological knowledge, enabling communities to engage more actively with their cultural heritage [4-6]. This short article explores the mutual influence of technocultural studies and AI technologies on archaeology, with a focus on the preservation and reconstruction of cultural narratives through digital means.

The first aspect of this intersection lies in how technocultural tools are creating …

The National Security Exception At The Wto: Should It Just Be A Matter Of When Members Can Avail Of It? What About How?, Mona Pinchis-Paulsen, Kamal Saggi, Petros C. Mavroidis

Faculty Scholarship

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue …

The Price Of Consent, Zohra Ahmed

Faculty Scholarship

This Article demonstrates how hierarchies in the international economy and in international financial institutions have facilitated the U.S.-led Global War on Terror (GWOT). Using U.S.-Pakistan relations as a case study, it shows how the United States has deployed its powerful position at the International Monetary Fund (IMF) to claim Pakistan's consent for its military activities in the region. In the GWOT's first decade, beginning in 2001, the United States openly sought forcible regime change, as in Afghanistan and Iraq; in its second and (now) third decades, the United States has waged covert counterinsurgency campaigns allegedly against militant groups in Muslim-majority …

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …