Digital Commons Network^™

The Permanent Bar(S): The Unprincipled Cage Of Retribution For Immigrant Youth, Dianara Ramirez Ibarra

Cardozo Law Review

This Note argues that a minor’s diminished decisional capacity should be recognized as an affirmative defense when a permanent bar that is triggered during minority strips away a noncitizen’s opportunity to gain lawful status in the United States. Dreamers and Deferred Action for Childhood Arrivals (DACA) recipients, individuals who arrived in the United States as children, are victims of punitive immigration laws that have extinguished any possibility of securing lawful residency in the United States. Even more egregiously, Dreamers and DACA recipients are subject to these permanent bars despite lacking the intent and capacity to fully understand the long-term consequences …

Data Rights For Workers, Pauline Kim, Rachel Leavitt

Scholarship@WashULaw

Workers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide …

The Limits Of "Punishment", Benjamin Levin

Scholarship@WashULaw

“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue—much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction? What …

Primer On Financing Commercial Real Property, Judge John M. Tyson

Campbell Law Review

No abstract provided.

Some Caution About Novel State Constitutional Rights, Nick Brod

Campbell Law Review

No abstract provided.

One Post Too Few: Doxing As A True Threat And North Carolina's Repeated Action Requirement, Abigail C. Akins

Campbell Law Review

The purpose of this Comment is to argue for the removal of the repeated action and direct targeting requirements for cyberstalking crimes under N.C. Gen. Stat. § 14-196.3. The recent influx of “doxing”1 behavior on the internet has necessitated statutory change for the protection of North Carolinians. This Comment describes the origins and different types of doxing on the internet, as well as the potential mental and physical impacts that doxing has on individuals who have been doxed. Further, this Comment analyzes the legal doctrines at work with doxing, specifically the First Amendment’s free speech protections and the right to …

A Sample Too Small To Sue Over: A De Minimis Approach To Music Sampling In The Fourth Circuit, Jana S. Flowers

Campbell Law Review

Have you ever listened to a song and gotten the sense that it sounds familiar without knowing why? In copyright law, that recognition (or lack thereof) can determine whether a musician is liable for copyright infringement. Federal courts are sharply divided over whether the unlicensed sampling of sound recordings should give rise to liability when the borrowed sound is trivial or unrecognizable. The Sixth Circuit’s bright-line rule treats any unauthorized sampling as infringement, while the Ninth Circuit preserves the traditional de minimis doctrine. This Comment argues that the Fourth Circuit should adopt the Ninth Circuit’s de minimis standard when faced …

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil M. Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Scholarship@WashULaw

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …

Apportioned Direct Taxes, Conor Clarke, Ari Glogower

Scholarship@WashULaw

The Constitution requires that Congress apportion any “direct” tax among the states by population. This once-dormant provision is now the most important constitutional limitation on Congress’s taxing power. Last year, in Moore v. United States, the Supreme Court seriously considered, for the first time in decades, whether to invalidate an Act of Congress as an unapportioned direct tax. While the law survived, Moore has opened a new era in which scholars and policymakers must again take apportionment seriously. Yet the apportionment requirement remains poorly understood.

This Article provides a new perspective on apportionment by examining how Congress and Treasury …

Space Enterprises As International Lawmakers: Nudges, Pledges, And Other Bottom-Up Modalities, Melissa (M.J.) Durkee

Scholarship@WashULaw

Private entities are influencing the development of international space law. Space enterprises need regulatory certainty and consistent standards to attract capital and develop their plans for space. Yet, states have lagged in their capacity to make multilateral international space law in traditional public fora. Private entities have responded to this legal lag by attempting to create, develop, and nudge international space law in commerce-friendly ways. This chapter surveys a variety of modalities by which commercial actors can affect the development of international law, offers several examples of how commercial lawmaking efforts

How International Organizations Regulate Lobbyist Access, Melissa (M.J.) Durkee

Scholarship@WashULaw

This chapter explores how international organizations (IOs) regulate lobbyist access through participation frameworks rather than traditional lobbying laws. While no unified international lobbying regime exists, IOs use rules on NGO 'consultation' and 'engagement' to structure access. These rules, rooted in historical practices like the UN's Economic and Social Council (ECOSOC) accreditation system, prioritize representativeness and legitimacy over transparency and accountability. As lobbying increasingly targets international forums, concerns about undue influence (the 'lobbying critique') and insufficient stakeholder inclusion (the 'access critique') have driven divergent reforms: some IOs, like the World Health Organization, have adopted stricter controls; others, such as the GAVI …

Taking Legality Seriously: What The Major Questions Doctrine Is — And Isn't, Andrea Scoseria Katz, Ofra Bloch

Scholarship@WashULaw

The Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded …

Privatising International (Organizations) Law, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the increasing role of private commercial actors within international organizations (IOs) and the implications for international law. Once conceived as state-centred institutions, IOs now routinely involve corporations, trade associations, and philanthropic foundations in lawmaking, policy-setting, financing, and implementation. These actors participate through multiple channels: as observers, delegates, stakeholders, funders, and partners. While private involvement has historical precedents, its contemporary scale and formalization mark a significant transformation in global governance. International law, however, offers little guidance on the boundary between public and private authority, leaving legitimacy concerns unresolved. To evaluate privatization, the article identifies two competing logics: a …

Advanced Introduction To Family Law In The Us, Susan Frelich Appleton

Scholarship@WashULaw

This Elgar Advanced Introduction provides key insights into family law in the US. In the midst of consequential changes wrought by the US Supreme Court, this book traces the evolution of the field from its origins in the law of domestic relations to the more modern regime of family law.

Key features include:
● Integrates state law, federal law, legal scholarship, and literature from other disciplines.
● Identifies the regulation of sex and the policy of keeping dependency private as family law''s principal enduring features.
● Surveys different topics in family law including: marriage, nonmarriage, and dissolution; pregnancy; parentage; and …

Abolishing The Family, Susan Frelich Appleton, Albertina Antognini

Scholarship@WashULaw

Family law scholarship is replete with calls for reform. Yet gender-, race-, and class-based inequalities within and across families remain intractable. So what if, instead of reforming the family, we abolish it?

Abolishing the family might sound like a startling idea for a family-law analysis, especially after decades of efforts to expand the legal understanding of “family.” But the proposal is hardly new. In this Article, we lay the groundwork for integrating family abolitionist ideas, which have until now mostly taken place outside of law, into family law scholarship.

While family abolition is in many ways a radical departure from …

Justifying The Fourth Amendment, Daniel Epps

Scholarship@WashULaw

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections …

Teaching Constitutional Law: Politics, Democracy And History, Andrea Scoseria Katz

Scholarship@WashULaw

Teaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our …

Seeing International Organizations In A Shifting Landscape: Law, Practice, And Authority, Melissa (M.J.) Durkee

Scholarship@WashULaw

This book review symposium comes at a moment of visible strain in the postwar legal order. As of this writing, Canadian Prime Minister Mark Carney has described a "rupture" in the rules-based world order, warning that multilateral institutions and the architecture of collective problem-solving are under threat. Notably, Carney issued that warning at the World Economic Forum in Davos, before an audience of "companies and countries." The setting underscores a broader shift in global governance, in which states, firms, and philanthropic actors increasingly occupy shared institutional spaces, unsettling assumptions about law and power at the international level. The books under …

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

Scholarship@WashULaw

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

Sustainability Assurance, Andrew F. Tuch, Luca Enriques, Alessandro Romano

Scholarship@WashULaw

A robust literature examines sustainability disclosures by public corporations, but legal scholarship has largely overlooked the role of third-party assurance—or verification—of such disclosures. This is a notable omission given the extensive literature on the auditing of financial statements, a related form of assurance.

This article responds by examining the role of assurance in sustainability reporting. In keeping with the theme of this symposium volume, it draws on US and EU law. Our discussion begins in Part I with sustainability disclosures, focusing on the requirements and practices of public companies. In Part II, we introduce sustainability assurance as well as assurance …

Tariffs And The Taxing Power: Historical Lessons For Major Questions And Nondelegation, Conor Clarke, Ari Glogower

Scholarship@WashULaw

American law is grappling with basic questions about the President’s power to impose tariffs—questions concerning whether Congress can delegate this authority, and the degree to which it has. But the ongoing tariff controversy emerges against a backdrop of conflicting and shifting historical practice. Early Congresses drafted tariff statutes in painstaking detail, while some of the broadest delegations in the early Republic involved internal taxes. In the modern era, by contrast, Congress has delegated more expansive tariff powers to the President, while retaining closer control over internal taxes. How should we understand this seemingly conflicting history of practice, and its relevance …

Foreword: The Constitution And Public Finance—Why Now And Why Ever?, Conor Clarke, Eric Kubo

Scholarship@WashULaw

This paper introduces the Washington University Law Review’s 2026 symposium issue on “Taxing, Spending, and the Constitution.” We situate the symposium’s ten papers within three interconnected developments in public finance law: the Supreme Court’s recent decision on the Sixteenth Amendment in Moore v. United States; the Trump Administration’s assertions of executive control over appropriated funds; and the use of emergency and trade statutes to justify sweeping tariff authority.

We also step back to ask why constitutional issues in public finance—long treated as a technical backwater—have become such a central site of doctrinal and political conflict. We offer several explanations beyond …

Tariffs And The Progressive Fiscal Constitution, Lawrence J. Liu, Alex Zhang

Scholarship@WashULaw

For more than a century, progressive taxation has constituted the American fiscal state. A resurgent and expanding tariff regime, however, threatens that commitment to progressive distribution. Given the ongoing popularity of tariffs, this Article examines how they might be designed and administered in a way that mitigates their regressive distributive impact. The Article thus develops and assesses proposals to (1) vary tariff burdens in accordance with the consumption of imported goods, (2) reduce income- or payroll-tax burdens on lower-income households, and (3) earmark tariff revenue for specified spending programs. Although none is perfect, we seek to articulate possibilities and highlight …

Tax Exceptionalism After Loper Bright, Conor Clarke, Noah Hertz Marks

Scholarship@WashULaw

We consider how tax regulations should be reviewed in a post-Chevron world. In 2011, the Supreme Court’s Mayo Foundation decision subjected Treasury regulations to ordinary Chevron deference, rejecting National Muffler’s tax-specific standard of review and declaring that the Court was “not inclined to carve out an approach to administrative review good for tax law only.” In 2024, Loper Bright overruled Chevron. This Article asks what Loper Bright means for Mayo—and, in turn, for National Muffler.

We reject the simple inference that Loper Bright automatically revives National Muffler. But we argue that National Muffler nonetheless …

Ossabaw Island - New Georgia Encycopedia, New Georgia Encycopedia.

Guarding Ossabaw Island: History and Archaeology of the 47th N.Y.V.I. Camp

A brief history of Ossabaw Island published online by the New Georgia Encyclopedia.

Obituary For The Birth Certificate, Malinda L. Seymore

Faculty Scholarship

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

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 …

Does It Matter What People Lie About?, Stefanie Jung, Peter Krebs, Monika Leszczynska

Faculty Scholarship

We investigate whether people’s moral judgments of lies in pre-contractual negotiations differ from their views on whether such lies should give the deceived party a legal right to rescind the contract, and whether these judgments depend on the content of the lie. In a vignette study with 832 German students and 885 participants from Germany, Italy, and the United States, respondents evaluated a range of common negotiation lies. Across samples, participants were generally more likely to deem a lie immoral than to believe it should justify rescission, but the size of this gap varied depending on the lie’s subject. Lies …

Symmetry, Presumptions, And The Judges Design, Murat C. Mungan

Faculty Scholarship

An instrumental variables approach called ‘the judges design’ used frequently in social sciences relies on an assumption called ‘average monotonicity’. This assumption pertains to how different judges’ (or other classifiers’) decision making processes relate to each other. Violations of it are hard to detect, which raises the importance of it being supported by a plausible theory. Decisions of judges who solve Bayesian decision problems violate average monotonicity as long as the signals they process are symmetric and they do not possess strong presumptions. This result is extended to cases where judge presumptions are symmetrically distributed and may include strong presumptions. …

Information Law Pluralism, Hannah Bloch-Wehba

Faculty Scholarship

Information-intensive activities are reshaping political, social, and economic institutions. As they respond to these shifts, legislators and regulators are embracing information as a regulatory device for tech. Far from limiting themselves to public disclosure, consumer notice, and other traditional mechanisms of fostering transparency and information flows, however, legislators are using other, more nuanced tools to incentivize regulated entities to obtain, generate, and share information.

This Article maps the landscape of the emerging information-based regimes for regulating tech and assesses their conceptual and practical implications. It canvasses an extensive set of recently enacted laws regulating the information economy and shows that, …