Digital Commons Network^™

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Reforming Revocation By Physical Act, Barry Cushman

Journal Articles

From the Introduction

In a previous article, I documented the various problems that are created by the law’s recognition of the power of a testator to revoke his will in whole or in part by physical act. That article canvassed five different areas of law in which such difficulties arise: ineffective attempts at revocation; the presumption of revocation; partial revocation by physical act; dependent relative revocation; and revival. In this Article, I first explore the asymmetries within the law of wills created by the persistence of revocation by physical act. I then offer some reflections on possibilities for reform.

Slices And Lumps: Division And Aggregation In Law And Life, Lee Anne Fennell

Books

No abstract provided.

Collectors, Copies, And Frauds: The Place Of Authenticity In The Early Us Art Market, Jasmine R. Bennett

SURF Posters 2026

In the early American republic, immigrant entrepreneur Michael Paff helped lay the groundwork for the modern American art dealing industry. Emigrating from Germany's Black Forest region as a child, Paff evolved from a shopkeeper selling musical clocks and luxury goods into one of New York City’s popular art dealers of his time to eventually outmaneuvering rivals like John Jacob Astor. Operating out of prominent Broadway locations, Paff orangized exhibitions featuring hundreds of works attributed to Old Masters. Though later scrutiny uncovered widespread misattributions and fraudulent sales after his death, Paff's charisma, passionate restoration efforts, and passionate marketing methods captured the …

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …

Ain’T Nothing Like The Real Thing: How Legal Research Programs Can Provide The Needed Safety Rails For Pro Se Litigants Using Ai In Litigation, Nicole Belbin

Faculty Scholarship

An estimated 92% of legal needs go unmet in America, leaving a growing number of pro se litigants to “manage their own cause.” Between 2000 and 2019, 27% of all civil cases filed in U.S. District Courts, totaling 1,501,079 cases, had at least one party without attorney representation. The legal profession is abuzz about the potential for generative artificial intelligence (GenAI) tools to “smooth out any mismatch between available resources and urgent needs in our court system”; however, “hallucinations” have quickly proved a limitation to reaching this technology’s full potential. The complexity of legal research and analysis increases the chance …

Constitutional Colonialism And Decolonization: Moving Toward A Decolonial African Constitutional Future, Luwam Dirar

Faculty Scholarship

This Article is an attempt at theorizing Africa's colonial constitutional legacies and post-colonial constitutionalism. The central argument of this Article is that constitutional law in Africa is a colonial tool that was used to legalize the subjugation of Africans and Africa, and a post-colonial necessity for the "self-determination and statehood" of newly-minted African states, while at the same time, it remains a decolonial battlefield of epistemic colonization. This Article adopts a broader conception of colonialism that extends beyond the 19th-century understanding of European colonialism and interrogates constitutional law as both a colonial tool and an act of self-determination in the …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Faculty Scholarship

Campaigns to review Japan’s wartime legacy and legal liability have recurred throughout postwar Japan. While most of these efforts have targeted the Japanese government, an important subset of actors has also focused on the role of Japanese corporations. And perhaps no one played a larger role in directing attention towards Japan, Inc. than Kim Gyeong-seok, a Korean forced laborer in the 1940s turned redress activist in the 1990s. As described in this Article, Kim’s 1991 lawsuit against Nihon Kokan launched the corporate accountability piece of the reparations project, an endeavor that continues to create ripples even now. The Article briefly …

Constructing Effectiveness: Culture, Legitimacy, And Strategic Planning In Zoos And Aquariums, Robin Keith

Dissertations

Zoos and aquariums are complex organizations operating with multiple mandates—saving species, providing exceptional care to animals, connecting communities with nature, and inspiring environmental action—making “effectiveness” difficult to define. What counts as success depends on who is asked and which goals are foregrounded. This study investigated how stakeholders in Association of Zoos and Aquariums (AZA)–accredited organizations conceptualize and operationalize effectiveness within strategic planning processes. Prior research on nonprofit and mission-driven organizations has shown effectiveness is multidimensional and often defined differently by various stakeholders. However, little has been known about how these definitions are negotiated through the practice of strategic planning, …

The Impact Of Rurality On Durable Medical Equipment Access And Discharge Planning For Tracheostomy And Ventilation Care In Nebraska, Karissa Nichols, Kayley Anderson, Morgan Bintner, Teresa Rodriguez, Jana L. Wardian, Jayme Dowdall

Journal Articles: Hospital Medicine

OBJECTIVES: Recognize how rurality impacts safe discharge planning and home management for complex airway patients. This study explores the distribution of durable medical equipment (DME) companies for patients with tracheostomies and/or ventilators, aiming to identify patterns in service access statewide.

METHODS: Key informant phone surveys assessed active DME companies statewide. DME companies were identified through hospital referral lists, discharge directories, and online searches. Data collected included service radius, respiratory supplies, and ventilation types. Geographic information system (GIS) mapping visualized coverage. Rural-urban status was classified using rural-urban commuting area (RUCA) codes.

RESULTS: Of 16 companies identified, 6 were closed, leaving 50 …

Judgement Morning: Studies In Holiness Radicalism, William Kostlevy

Academic Books

No abstract provided.

Application Of Current Enteral Nutrition Support Recommendations To Infants Born Less Than 750 Grams Or Less Than 25 Weeks' Gestation: A Critical Review, Mar Romero-Lopez, Mamta Naik, Teresa Hartman, Ann Anderson-Berry, Melissa Thoene

Journal Articles: Pediatrics

Clinicians face a paucity of evidence-based recommendations for provision of enteral nutrition in infants born < 750 g or < 25 weeks' gestation, termed "nano-preterm." Current enteral nutrition recommendations for extremely low birth weight infants may not be broadly applicable to nano-preterm infants due to physiological and developmental differences, while others may be appropriate. Key enteral nutrition-related considerations include: the unique anatomy and physiology of the gastrointestinal tract, altered metabolic capacity, availability of maternal milk and use of alternative substrates, detailed methods of initiation and advancement of enteral feeding, methods of human milk fortification, targeted requirements for macronutrient and micronutrients, and the safety and efficacy of enteral nutrition support management to optimize the growth and development of the nano-preterm infant. This comprehensive review focused on enteral nutrition provision in nano-preterm infants, thoroughly evaluating available literature and identifying knowledge gaps about the unique physiology and metabolism of the nano-preterm infant as it pertains to enteral nutrition. Ultimately, prospective multicenter research is needed to establish evidence-based guidelines to promote optimal growth and development while minimizing complications of extreme prematurity.

Emotional Expression For Community Healing: A Study Of Restorative Justice Circle Discussions Addressing Social Harm, Hannah Darnell

FCRH Honors Program Theses

Restorative justice (RJ) programs have increasingly been used to respond to social harm, and at times have been employed as alternatives to some of the United States’ traditional criminal court procedures. Studies suggest that these restorative programs find success in repairing relationships and reintegrating individuals back into their communities, tend to be perceived as positive by participants, and have the potential to reduce recidivism rates. This study explores how and why these restorative justice meetings work through an examination of the presence and evolution of participant emotional expression, as well as the role that outward communication of emotion has in …

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 …

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 …

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 …

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 …