Law Commons^™

Artificial Intelligence And Procedural Due Process, Brandon L. Garrett

Faculty Scholarship

Artificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and …

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

Money: A Functional Analysis, Steven L. Schwarcz

Faculty Scholarship

Most people currently think of money as government-issued paper certificates or coins that specify units of currency, such as dollars or euros. The advent of digital currencies, which appear abstract because of their intangibility, is therefore confounding almost everyone.

This Article argues that money should also be viewed functionally—as a “right” that serves one or more of the generally accepted functions of money. The Article focuses on two of money’s most generally accepted functions: to serve as a medium of exchange to facilitate the sale of goods and services, and to serve as a store of value. To perform these …

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 …

The Social Cost Of Plastic To The United States, Nancy Lauer, Tibor Vegh, Michelle Nowlin, John Virdin, Jason Somarelli

Faculty Scholarship

No abstract provided.

Recent Changes In Discretionary Denials Of Drug Patent Challenges, S. Sean Tu, Arti K. Rai, Aaron S. Kesselheim

Faculty Scholarship

Recent policy shifts at the U.S. Patent and Trademark Office (USPTO) have sharply limited the use of two administrative pathways for patent reviews, inter partes review (IPR) and post-grant review (PGR). Congress created these administrative pathways to provide a faster and less costly way to challenge weak patents. Recently, the USPTO has expanded the use of “discretionary denials,” invoking a new “settled expectations” rationale that blocks IPR petitions for patents more than about six years old. From May to September 2025, 60% of 506 requests for discretionary denial were granted, triple historical levels, including one-third involving drug patents. These changes …

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

Brief Of Professors Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, And Chantal Thomas As Amici Curiae In Support Of Petitioners In No. 24-1287 And Respondents In No. 25-250, Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, Chantal Thomas

Faculty Scholarship

No abstract provided.

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

Interplanetary Risk Regulation, Jonathan B. Wiener, Charles (Chase) Hamilton

Faculty Scholarship

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, …

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 …

“Murder The Media”: Press Freedom, Violence, And The Public Sphere, Joseph Blocher

Faculty Scholarship

The first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach, Laurence R. Helfer, Başak Çalı

Faculty Scholarship

This article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing …

A Critique Of Findings On Gun Ownership, Use, And Imagined Use From The 2021 National Firearms Survey: Response To William English, Deborah Azraek, Joseph Blocher, Philip J. Cook, David Hemenway, Matthew Miller

Faculty Scholarship

For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide …

The Invention Of The Judicial Administrative State, Marin K. Levy

Faculty Scholarship

No abstract provided.

Listening On Campus: Academic Freedom And Its Audiences, Joseph Blocher

Faculty Scholarship

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis, but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic …

Defining The Field Of Judicial Administration, Marin K. Levy

Faculty Scholarship

This Keynote address, as part of a symposium on "Theorizing the Judicial Process," aims to make a case for the field of judicial administration and to define the field more generally. Specifically, it seeks to raise the organizing questions of the field and to note the kind of work--descriptive, empirical, and theoretical--that is needed to answer them. The hope is to map out a collective research agenda for courts scholars to pursue into the future for the benefit of the academy and judiciary, both.

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …

Criminalization Of Immigration, Emily Ryo, Jennifer M. Chacón, Cecilia Menjívar

Faculty Scholarship

This article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the …

Copyrighting Style, Christopher Buccafusco

Faculty Scholarship

Does copyright law protect an artist’s style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright law’s idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both.

This is unfortunate because, this Article argues, copyright law’s idea/expression distinction is inadequate to the task of determining the copyrightability of style. …

The Future Of Ai Regulation In Drug Development: A Comparative Analysis, Gabriela Lenarczyk, Timo Minssen, Nicholson Price, Arti Rai

Faculty Scholarship

As artificial intelligence (AI) transforms drug development, regulatory frameworks are evolving to oversee its implementation, particularly at the US Food and Drug Administration (FDA) and the European Medicines Agency (EMA). This paper makes three contributions to understanding emerging regulatory approaches. First, we offer a comparative analysis of how these agencies have responded to AI-driven advances, incorporating new US executive orders and the European Union (EU)’s AI Act. Second, we propose a novel analytical framework to understand regulatory divergence: the FDA’s flexible, dialog-driven model contrasts with the EMA’s structured, risk-tiered approach, reflecting broader institutional and political-economic differences. While the former encourages …

Trauma-Informed Courts? How Judges May Influence Kids’ Experiences Of Court, Eva Mckinsey, Amelia Ashton Thorn, Minjee Kristin Kim, Catherine Gorey

Faculty Scholarship

No abstract provided.

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Information Retrieval In The Age Of Generative Ai: A Mismatch That Matters, Alex Zhang

Faculty Scholarship

This short piece explores a widespread and yet underexamined or even overlooked misconception, that is, large language models (LLMs) function like traditional legal research databases. They do not. As a matter of fact, information retrieval from databases functions very differently from LLMs in terms of inputs, retrieval processes, and outputs. These differences have significant implications for transparency, traceability, and overall effectiveness in AI-driven legal research. Without intentional oversight and adaption, these changes could profoundly affect how we develop research skills and a cumulative knowledge base, both of which are essential skills for lifelong learning in the legal field.

This article …

Secondary-Default Remedies: Should Harshness Limit Enforcement?, Steven L. Schwarcz

Faculty Scholarship

This Article examines a critical but largely unexplored issue in contract law: whether secondary defaults—that is, relatively minor or technical defaults not involving debt repayment— should justify enforcing severe contractual remedies. In the context of lending, this issue concerns whether those types of defaults should justify terminating financing commitments, accelerating the maturity of outstanding debt, and foreclosing on collateral, any of which can cause a firm’s failure. Although this issue arises constantly and its resolution can be critical to a firm’s survival, judges and lawyers lack clear answers. This Article analyzes and seeks to provide answers both under existing law …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

Faculty Scholarship

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

The Nauru Declaration: A Milestone For Judicial Wellness, Rangajeeva Wimalasena, Lynne C. Leitch, Carly Schrever, Jeremy Fogel

Judicature International

No abstract provided.