Law Commons^™

Build, Baby, Build: Federal Takings For Affordable Homes, Desiree C. Hensley

Missouri Law Review

The private housing market in the U.S. fails to produce sufficient affordable housing for the people who need it. Even middle-income Americans are stretched to buy or rent. If local and state governments cannot respond effectively, may the federal government simply use eminent domain to build affordable homes to correct the nation’s housing market, including the high cost of land? Conventional wisdom is that the Constitution prohibits such federal action. This understanding arises from a brief period during which the federal government built fifty housing projects—approximately 21,000 housing units—in thirty-five cities across the United States during the Great Depression. The …

Unreasonable Accommodations: Staple V. School Board Of Broward County And The Case For The Interactive Process In Title Vii Accommodations, M. Thomas Yang

Missouri Law Review

When Congress enacted the Americans with Disabilities Act (ADA) in 1990, it envisioned a unique dispute resolution mechanism within the statute—the interactive process. Under this process, when an employee requests an accommodation from an employer, the two must “work together to assess whether an employee’s disability can be reasonably accommodated.” Although the term “interactive process” does not appear in the ADA’s text, the Equal Employment Opportunity Commission (EEOC) interpreted Congress’s intent and incorporated the interactive process into its regulations to guide disability accommodations. Strangely though, Title VII, which governs religious accommodations, does not include the interactive process in its text …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …

De-Skilling Or Re-Skilling? The Case For Smarter Writing Assignments, John Lande

Faculty Publications

This article challenges the assumption that AI inevitably leads to the de-skilling of law students.  Some faculty understandably fear that students will use AI to bypass critical thinking and avoid meaningful effort.  This article reframes AI as a potential catalyst for improving legal education rather than inherently a threat.

Concerns about de-skilling generally are based on the assumption that faculty will not change traditional writing assignments.  This article analyzes why these assignments often fail to help students develop strong analytical and writing skills. These include limited instruction in basic writing skills, poor design, lack of feedback, and faculty inertia in …

Teaching Evolution After Kennedy And Mahmoud, Alexander Gouzoules

Faculty Publications

One of the longest running disputes at the intersection of education law and the First Amendment has involved conflict over evolutionary biology in American public schools. Through a century of nearly continuous litigation, creationist legislation and parental demands to exempt students from science instruction have been constrained by longstanding First Amendment doctrines.

That settlement is now unraveling. In Kennedy v. Bremerton School District, the Supreme Court abandoned its prior approach to the Establishment Clause in favor of a history-and-tradition analysis that is ill-suited to questions about modern scientific education. And in Mahmoud v. Taylor, the Court held that students' compulsory …

Investigation Expenses, Ryan Vacca

Faculty Publications

Misappropriating trade secrets is usually done in secret. After all, those taking another’s trade secret in violation of state and federal law rarely openly tout their misdeeds. As a result, trade secret owners do not always immediately realize that their trade secret has been misappropriated and must spend significant resources investigating whether misappropriation has occurred and, if so, by whom and to what extent.

An important question frequently arising over the last several years but overlooked in the scholarly literature is whether a trade secret owner’s investigation expenses are recoverable as “actual loss” under state and federal trade secret laws. …

Artificial Intelligence, Judicial Evolution, And Insurance, Renee Henson

Faculty Publications

AI-driven platforms have the potential to inflict traditional injuries in new ways. Proprietary algorithms trained on large volumes of personal data can cause mental, emotional, and sometimes physical injuries via conversational exchanges, harmful content recommendations, and the promotion of extremist content. This "algorithmic liability" fundamentally challenges existing legal doctrines and statutory protections, thereby exposing deficiencies in current insurance coverage frameworks. 

Historically, courts dismissed algorithmic liability claims early in litigation, invoking Section 230 immunity and First Amendment protections, and resisted classifying algorithmic tools as "products" for the purposes of products liability law. Recent jurisprudence, however, signals a critical turning point. On …

Lynk Labs: How The Least-Vetted Documents Destroy Issued Patents, Dennis D. Crouch

Faculty Publications

The Lynk Labs petition presents the Supreme Court with an opportunity to restore the temporal coherence that Congress built into § 311(b)'s evidentiary framework. By treating "printed publication" as synonymous with any reference that eventually becomes public, the Federal Circuit has transformed IPR into a forum where unexamined, abandoned patent applications can destroy patents that survived the very scrutiny those applications failed to complete. The Court should grant certiorari and hold that a printed publication must be printed and published before the critical date to serve as the basis for an IPR challenge.

Solving Professors' Dilemmas About Prohibiting Or Promoting Student Ai Use, John Lande

Faculty Publications

Faculty face difficult dilemmas as law students increasingly use generative artificial intelligence (AI) tools like ChatGPT.  Should faculty prohibit student use of AI in course work, allow it within limits, or actively encourage it to build professional skills?  Because students already use AI tools, faculty must respond.  Doing nothing can undermine core educational goals.

This article offers practical strategies for addressing these dilemmas.  These strategies are designed to promote learning, uphold academic integrity, and prepare students for an evolving legal profession.  This article outlines two broad approaches:  restricting unauthorized AI use and promoting responsible, supervised use.  It provides concrete suggestions …

Teaching With Ai: Insights From A Faculty Focus Group, John M. Lande

Faculty Publications

This report summarizes insights from a focus group of law faculty who discussed their experiences and perspectives about using artificial intelligence (AI) in legal education.  The focus group took place at the 2025 Works-in-Progress Conference sponsored by the ADR Section of the Association of American Law Schools.

The responses reflect a range of reactions, providing a snapshot of how some faculty are experimenting with AI, evaluating its risks and benefits, and considering how best to achieve their pedagogical goals.  Participants expressed interest in using AI as a teaching tool – particularly in communication exercises, simulations, and written assignments – and …

Teaching Students To Write Well With Ai (Even If You're Still Learning It): A Guide For Faculty Who Want To Teach - Not Play Detective, John Lande

Faculty Publications

As generative artificial intelligence (AI) tools rapidly enter legal education, faculty need practical ways to guide student writing and promote academic integrity.  This one-page guide offers concrete strategies to help faculty teach students to think and write more effectively with AI tools.  As students increasingly use AI on their own, faculty face two related challenges:  preventing misuse and promoting deeper learning.

This guide frames the instructor’s role not as a detective, but as a coach who helps students use AI responsibly.  It outlines techniques to clarify expectations, promote good writing, and foster critical engagement with AI.  Adapted from the short …

Did Your Student Or A Bot Write This Paper?: Teaching And Grading In The Age Of Ai, John Lande

Faculty Publications

Generative artificial intelligence (AI) is disrupting traditional assumptions about law students’ authorship of their written assignments.  Faculty are concerned about their ability to tell whether students are writing their own papers or simply using AI tools like ChatGPT.  This article offers practical strategies for addressing this problem, focusing on teaching and grading practices that promote transparency, accountability, and learning.

It recommends that faculty require students to include AI use certification cover sheets with their papers, disclosing whether and how they used AI tools during the writing process.  The article also explains how faculty can shift from purely summative to use …

Faculty Use Of Artificial Intelligence In Teaching, John Lande

Faculty Publications

This report presents findings from a 2025 survey of U.S. law faculty about their own use of generative artificial intelligence (AI) tools such as ChatGPT and how their students use them as well.  Most respondents reported using AI at least occasionally for teaching-related purposes, and many estimated that a majority of their students used it in their courses.

Faculty identified benefits such as time savings, idea generation, and improved clarity. They also reported significant concerns about students’ over-reliance on AI, as well as the unreliability of its outputs.

Most faculty had revised assignments and assessment practices and provided guidance to …

The Art Of Ai Prompting In Law And Dispute Resolution Practice, John Lande

Faculty Publications

This short article offers a practical guide for using AI tools to improve the judgment and efficiency of lawyers, mediators, and arbitrators.  It cites ABA Ethics Opinion 512, which describes lawyers’ ethical duty of technological competence under the ABA Model Rules.

The article encourages practitioners to begin by selecting AI tools appropriate to their tasks such as general-purpose platforms or specialized tools listed in the article.  It explains how to write effective prompts, use follow-up questions to refine outputs, and apply professional judgment when reviewing results.  It includes a list of suggested follow-up prompts.

Getting useful results from AI tools …

Ncti Is The New Gilti, And States Should Still Conform, David Gamage, Darien Shanske

Faculty Publications

This essay continues our series on corporate profit shifting by analyzing how states should respond to the federal One Big Beautiful Bill Act, which transformed GILTI into the new Net Controlled Foreign Corporation Tested Income (NCTI) regime. We argue that states should conform to this new federal provision as a reasonable and legally sound approach to combatting the persistent profit shifting that erodes state tax bases. The 60 percent inclusion rate for NCTI effectively serves as a practical, "rough justice" estimate of income that was economically generated domestically but improperly shifted offshore — an estimate supported by empirical research. We …

Profit Shifting And The States: A Short Primer, David Gamage

Faculty Publications

This essay argues that corporate profit shifting remains one of the most significant challenges for U.S. state tax systems. Multinational enterprises continue to shift billions in profits to offshore tax havens, eroding state tax bases, distorting market competition, and forcing a greater reliance on more regressive taxes. We contend that the dominant "water's-edge" combined reporting method used by most states is structurally inadequate to combat modern profit-shifting techniques, which primarily involve the manipulation of intangible assets. The recent transformation of federal tax law (from GILTI to NCTI) and the global adoption of the OECD's Pillar 2 minimum tax framework create …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Note, Kiera Doughty

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

How Much Can Saying “I Do” Impact Your Tax Liability?, Mary Capron

The Business, Entrepreneurship & Tax Law Review

President Trump signed the One Big Beautiful Bill Act into law on July 4, 2025. Notably, the Bill extended many provisions of the Tax Cuts and Jobs Act that Congress passed in 2017. This paper will explore marriage penalties through the lens of the Tax Cuts and Jobs Act. Taxes in the United States are based on a progressive system. Simply put, this means that all taxpayers do not pay the same amount in taxes; instead, they are treated differently depending on various factors such as earned income, number of dependents, and marital status. This system creates some marriage penalties …

Patent Paradox: When Protection Becomes Proliferation, Austin Talir

The Business, Entrepreneurship & Tax Law Review

This paper examines the problematic practice of double patenting and patent proliferation within the United States patent system, analyzing how these practices undermine the constitutional mandate to “promote the Progress of Science and useful Arts.” The analysis demonstrates how double patenting—both statutory and nonstatutory types—enables companies to extend monopolistic control beyond the intended 20-year patent term, creating significant economic distortions through reduced competition, increased market entry barriers, and innovation anti-commons, particularly in the pharmaceutical industry. The paper documents how these practices directly impact healthcare accessibility through increased medical costs, delayed generic alternatives, and misaligned research priorities that disproportionately affect vulnerable …

Who Pays For Cheap Speech? How Economic Shifts In The News Industry Shape Defamation Law, Michaela Paquette

The Business, Entrepreneurship & Tax Law Review

This article examines how the internet and the rise of “cheap speech” have transformed the media industry, disrupted traditional economic incentives for responsible journalism, and exposed the limitations of current defamation law. It argues that the New York Times v. Sullivan “actual malice” standard, while appropriate for the professionalized and objective media environment of the mid-20th century, no longer sufficiently supports robust public discourse in the digital age. This article proposes incorporating journalistic standards into defamation analysis as an evidentiary tool to better distinguish between mere negligence and actual malice while preserving core First Amendment considerations. By realigning legal incentives …

Solving The No-Reading Problem With Ai, Royi Ashkenazi

The Business, Entrepreneurship & Tax Law Review

Standard form contracts bear a consistent curse: consumers do not read them. While AI-powered tools like ChatGPT are now capable of parsing and interpreting such complicated contracts efficiently, the mere existence of these technological capabilities does little to solve the core “no-reading problem”—consumers must actually adopt and use AI for this purpose. This paper proposes a novel regulatory regime that could fundamentally alter consumers’ approach to SFCs through two mandatory requirements: first, that sellers embed in their contracts direct hyperlinks or QR codes connecting to certified AI systems with pre-prepared prompts; second, that all SFCs contain a prominent clause explicitly …

Can Corporate Law Wake Up Disney After Biting The Enchanted Apple Of Wokeness: The Politicization Of Disney And Corporate Law’S Weak Response, Brian M. Mccall

The Business, Entrepreneurship & Tax Law Review

Corporations that are household names for American consumers have been in the news for alienating their customers and segments of the public by embroiling their companies in controversial political issues. Target, Anheuser-Busch, and Disney are three prominent examples of companies in the news for putting their foot on politically sensitive issues. As Ryan Newman has explained, the issues raised by these events demonstrate an extensive political activism by American corporations that not only spend billions of dollars on political causes unrelated to their business, but also take actions and political stances on matters wholly unrelated to their products or markets, …

State Your State: How Current State Tax Residency Laws Make It Difficult To Determine A Taxpayer’S State Of Residence, Ashley Moulis

The Business, Entrepreneurship & Tax Law Review

Of the 41 states that impose a state income tax, each has adopted its own framework for making residency determinations. Because residency provides one of the two bases for a state to claim taxing jurisdiction, the determination of residency can have a significant impact on taxpayers. While the majority of states have incorporated both a domicile and statutory tax residency test, the nuances of how these tests are applied differ from state to state, opening the door to confusion as to which state(s) a taxpayer may owe taxes. To provide both clarity to taxpayers and to avoid the potential for …

Evolving Toward The Sun, Samuel Kan

The Business, Entrepreneurship & Tax Law Review

The United States is at a particularly important economic and environmental crossroads. To ensure energy independence and the sustainability of the economy, the government should help consumers and businesses in the United States evolve away from burning fossil fuels towards using renewable energy-especially solar power. Simultaneously, the government needs to foster the reduction of pollution and address climate change for the long-term health and welfare of society. In short, this article uses current events and the findings of a four-year study evaluating renewable energy equipment to propose draft legislation to address these critical issues.

The Money Behind Mommy: Addressing The Exploitation Of Kidfluencers On Social Media, Emma Goodlet

The Business, Entrepreneurship & Tax Law Review

Child Influencers, or “kidfluencers,” have become prevalent on social media platforms and have amassed great fame. Kidfluencers are capable of making millions of dollars each year, but the industry remains largely unregulated because these children are not subject to typical child labor laws. Kidfluencers often suffer from financial and sexual exploitation, and psychological harm as a result of this exploitation. There are few effective federal laws to protect kidfluencers from exploitation and harm on social media, which has allowed kidfluencer exploitation to run rampant. Some states have begun to enact laws to protect kidfluencers in a similar manner to child …

Biting The Hands That Feed Us: Immigration Policy, Enforcement, And The Structural Vulnerability Of Agricultural Labor, Claire Kelly

The Business, Entrepreneurship & Tax Law Review

The United States agricultural sector heavily relies on migrant labor, with undocumented workers composing a substantial share of the workforce. As the Trump Administration initiates its mass deportation policy, this article examines the far-reaching economic and legal consequences that such actions would impose on American agriculture. Mass deportation not only threatens to destabilize food production and inflate food prices, but it also exposes the longstanding legal neglect of farmworkers, whose labor protections remain fragile or non-existent under current U.S. law. This article analyzes the exploitation of agricultural workers embedded in the United States’ history, critiques the inadequacies of current programs …

How Mediators And Lawyers Can Use Ai: A Practical Video Guide, John Lande

Faculty Publications

This article explains why mediators and lawyers increasingly need to use artificial intelligence (AI) tools in their work.  It introduces a video that offers practical guidance for mediators and lawyers on using AI to enhance planning, help clients make better decisions, and improve efficiency.  It includes a basic introduction to AI, guidance on getting good results and managing risks, and demonstrations of RPS Coach, a specialized AI tool.  The article provides links to the video, PowerPoint slides, and a transcript of the demonstrations.