Law Commons^™

Prevention Of And Response To International Crimes Against And Affecting Children, Diane Marie Amann

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This submission endeavoured to aid the efforts of Parliament’s Standing Group on Atrocity Crimes to promote within the United Kingdom a comprehensive framework regarding international crimes. The submission stressed that prevention is the preferred course: ex ante prevention avoids present harms, inter-generational traumas, and future risks of retaliatory violence, while ex post responses, in the form of criminal proceedings, are likely to be random and selective, not comprehensive. It urged that when harm does occur, responses must aim not only to exact retribution, but also to repair injuries, heal societies, and foster peaceful settlements of disputes. To these ends, the …

Whither Leviathan? The Seepage Of Constitutional Law Into Public-Private Arbitration In The United States, Peter B. Rutledge

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The chapter analyses how constitutional law influences private-public arbitration in the United States. Its central thesis is that constitutional law exerts a powerful indirect influence on arbitration law. While the US Constitution does not directly regulate arbitration, its underlying norms—such as separation of powers, federalism, and individual rights—impact arbitration law indirectly. The chapter explores the ways in which these constitutional principles influence public-private arbitration through statutory interpretation, treaty design, and private protocols reflecting constitutional norms. This pattern of influence manifests itself in public arbitration (i.e. arbitration involving states or state-owned entities) just as it does in private arbitration. Highlighting how …

Inge Viermetz, Woman Acquitted At Nuremberg, Diane Marie Amann

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Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it …

Public Defender Workload And The Promise Of Gideon, M. Eve Hanan

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Gideon v. Wainwright, which was decided in 1963, held that the Sixth Amendment guarantees the right to counsel for poor people charged with crimes in state court.1 Over the six decades since Gideon was decided, states have grappled with how to provide public defense services.

The Merging Of Ownership And Control, Tomer S. Stein

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What if shareholders controlled every decision their company makes? This seemingly simple idea threatens to upend the modern corporation.

Shareholders own the corporation and directors and officers manage the corporation—a “separation of ownership and control” that has become a defining characteristic of our modern economy. As per conventional wisdom, the law enables separation of ownership and control by not prohibiting owners and employees from exercising their contractual freedom to hire and work for one another.

This Article demonstrates that this widely held view is incomplete and detrimental to the economy. Much of the economic activity that utilizes the corporate form …

Tied Together With Covenants: Tying Provisions As The Anti-Hero To Fdic Insurance Limits, Kelly W. Cline

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No abstract provided.

Empirically Testing The "Unbiased Factfinder[S]", Chris Cox

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No abstract provided.

Copyright, Creativity, And Skill: Authorship And Ai-Assisted Works, Lucas S. Osborn

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Generative artificial intelligence ("Al") has increasingly become a focal point in legal discussions, raising complex issues across multiple domains, including algorithmic bias, defamation, intellectual property, and privacy. This Article specifically examines the implications of Al-assisted works, with a focus on text-to-image generators, such as Midjourney, that possess the ability to create detailed visual art from simple text prompts. The tools are not, however, limited to simple prompts. Users retain the ability to introduce greater complexity by specifying a host of variables that define the resulting image. Al-assisted art implicates significant legal rights and responsibilities. As to responsibilities: Can the image …

Person-Centered Pluralism About Contract Theory, C. Scott Pryor

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No abstract provided.

Principles Of Legal Writing, Raluca Papadima

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No abstract provided.

Rationalizing Rape: How Military Appellate Courts Get To Yes, Chris Cox, Ashley Fancher

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This study examines how military appellate courts rationalize overturning sexual assault convictions through qualitative analysis of opinions finding factual insufficiency. Drawing from cases between 2017-2020, concerning patterns are identified in judicial reasoning that reflect persistent rape myth acceptance despite decades of statutory reform. The analysis reveals that courts frequently question victim credibility based on delayed reporting, counterintuitive victim behavior, and continued contact with perpetrators - factors that trauma research has shown to be common among sexual assault survivors. Of particular concern is courts' treatment of incapacitation cases, where judges often acknowledge significant victim impairment yet find ways to question consent …

Time For A New War Crimes Commission?, Diane Marie Amann

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This essay begins by exposing gaps in accountability in the wake of Russia’s full-scale invasion of Ukraine in 2022. It explains why neither the International Criminal Court nor any other body is authorized to pursue all the crimes of that war, and then considers whether a more comprehensive approach might be found in the United Nations War Crimes Commission. In its five years of operation  (1943–1948) that multilateral institution gathered information on tens of thousands of potential suspects, and helped to coordinate trials against many of them – not only the Nuremberg proceedings, but also in Allied zones of occupation …

Fighting The Hypothetical: Why Law Firms Should Rethink The Billable Hour In The Generative Ai Era, Nancy B. Rapoport, Joseph R. Tiano Jr.

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“Fighting the Hypothetical: Why Law Firms Should Rethink the Billable Hour in the Generative AI Era” analyzes how the emergence and adoption of generative artificial intelligence (GenAI) will fundamentally disrupt the traditional billable hour model that has dominated the industry since the 1960s. Professor Rapoport and Mr. Tiano contend that GenAI’s ability to perform routine legal tasks quickly and accurately will force law firms to shift away from billing structures based primarily on time spent (or inputs) and toward models that better reflect client value (or outputs).

The authors interviewed law firm leaders to gain an “in the trenches” view …

Forging Ahead Or Proceeding With Caution; Developing Policy For Generative Artificial Intelligence In Legal Education, Nachman Gutowski, Jeremy W. Hurley

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Generative Artificial Intelligence is rapidly being integrated into every facet of society, including a growing impact on law schools. It has become abundantly clear that there is a need to develop well-defined governing policies for its use and adoption in legal education. This article offers an introductory analysis of related approaches currently taken in various law schools, exploring the factors influencing these policies and their ethical implication. A comparative review of institutional policies reveals both similarities and unique approaches. Common themes include the need for balance between limited use and outright reliance, as well as the need for transparency and …

"A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

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Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Restorative Justice In Legal Education, Lindsey Pointer, Aparna Polavarapu, Alanna Ojibway

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No abstract provided.

Cross-Border Limitations And Exceptions To Copyright: “Powered By Ai”, Marketa Trimble

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Businesses and institutions that wish to utilize copyright protected works in multiple countries face a multiplicity of national copyright laws; although national copyright laws have been harmonized in accordance with several international treaties and harmonized even more in the European Union member states by European Union legislation, countries’ copyright laws continue to vary. The multiplicity of national copyright laws raises costs of transnational operations, including for businesses and institutions that rely on limitations and exceptions to copyright (“L&Es”) in multiple countries. For example, AI companies might want to rely on L&Es to train and deploy their AI in multiple countries, …

Bridging Movement Lawyering & International Human Rights Advocacy, Citlalli Ochoa

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The human rights field is often criticized for its lack of enforcement and implementation, lawyering methodologies, and its roots in imperialism, exceptionalism, and Eurocentric values. In response to some of these critiques, human rights scholars and advocates have embraced more grassroots approaches that in many instances resemble the movement lawyering methodologies employed in social justice advocacy in the United States. In the same way that movement lawyers have centered impacted communities and engaged in long term, coordinated legal and political advocacy to achieve normative change, human rights advocates have used the international human rights framework to exert political pressure, facilitate …

Interoperable Legal Ai For Access To Justice, Drew Simshaw

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The access-to-justice gap is growing, affecting individuals with both civil and criminal needs in the United States. Though these challenges are multifaceted, procedural barriers in the U.S. legal system can often inhibit access-to-justice efforts. The resulting inequities undermine fairness for those interacting with courts and jeopardize the legitimacy of the broader legal system. Legal technology driven by artificial intelligence (Al) has been heralded for its potential to combat these challenges on three access-to-justice fronts that are often conceptualized in isolation: a consumer (i.e., self-help) front, a legal-service-provider front, and a court front. Progress on each of these fronts is apparent, …

Lex Ex Machina: Forging A New Ethical Framework For Ai And Technology In The Law, Joseph Regalia

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The rise of generative artificial intelligence (GAI) offers the legal profession a chance to reevaluate and reshape its ethical standards. This article argues that GAI's potential demands a more detailed approach to legal ethics, especially concerning technology use. While current ethics rules provide a general foundation, they do not fully address the unique challenges and opportunities of GAI and similar advanced technologies.

By reviewing historical contexts of legal technology ethics and recent GAI regulations, this article suggests a new model for technology ethics in law. It calls for the inclusion of detailed, flexible standards in ethical guidelines, moving beyond the …

The Law Of Digital Resurrection, Victoria J. Haneman

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The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …

Advancing Deib In Our Communities: How To Gain Leadership Experience At Work In A Non-Supervisory Role: Advocacy, Conversations, And Creating Change, Jason Tubinis, Havilah Joy-Steinmen Bakken, Aamir Abdullah, Valerie Horton

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The article emphasizes the critical role of diversity, equity, inclusion, and belonging (DEIB) in librarianship and legal professions, highlighting the challenges of information overload and the importance of advocacy. It provides strategies to manage information effectively and stay informed, advocating for the use of reliable sources and critical media literacy to navigate misinformation.

Countries As Laboratories: Reflections On Sierra Leone’S Amended Anti-Human Trafficking Law, Andrea L. Dennis

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Sierra Leone’s improved anti-trafficking laws align with global norms, but enforcement remains weak due to socio-economic realities and Western deterrence mismatches, limiting effective prosecution despite recent legislative reforms.

Transunion, Vermont Agency, And Statutory Damages Under Article Iii, Randy Beck

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The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute like the Fair Credit Reporting Act (FCRA) simply because the defendant violated a right Congress conferred on the plaintiff. Instead, Article III requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States …

Bridging The Information Gap Between Criminal Law And Psychological Science, John B. Meixner Jr.

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Some of the most pressing issues in American criminal law—the dominance of plea bargaining, vast executive discretion, and systemic racial disparities—turn on fundamentally empirical questions. Yet, while legal academics largely analyze these issues through doctrinal or theoretical lenses, psychologists and criminologists frequently study the exact same phenomena using empirical methods. Surprisingly, these fields operate almost entirely independently. The legal academy consistently overlooks substantial psychological research that could inform normative arguments, while psychologists often design studies without crucial context from criminal legal scholarship. This chapter outlines the contours of this critical information gap and proposes solutions to bridge it.

The End(S) Of Bankruptcy Exceptionalism: Purdue Pharma And The Problem Of Social Debt, Pamela Foohey, Jonathan C. Lipson

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The Supreme Court’s recent 5-4 decision in the controversial chapter 11 bankruptcy reorganization of opioid-maker Purdue Pharma ends the use of nonconsensual third-party “releases,” which discharge (eliminate) liabilities of non-debtors who may share liability with a corporate debtor. Although the majority opinion is correct that the Bankruptcy Code does not permit this, it failed to recognize the problematic exceptionalism of the lower courts which approved those releases or the “social” qualities of Purdue Pharma’s mass tort liability.

Bankruptcy exceptionalism has been a contested concept since it emerged over fifteen years ago, and reflects a willingness to bend the rule of …

Confession And Confrontation, William Ortman

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The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

What's In A Name? Policing, Juliet., Shanée Brown

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Child welfare" and "child protection" are misnomers. These terms do not accurately depict the investigatory nature of the system purported to help families, or at the very least, save endangered children. Contrary to public opinion, the "child welfare system" comprises of state actors who police parents and children. It is the naming of this system that convinces the public that these agencies are excised from the category of law enforcement, persuading many that the agencies engage in social work and not police work. Calling the system what it really is-family policing-is a step toward achieving justice for families adversely impacted …

The Regulation Of Presidential Elections, Lori A. Ringhand

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There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article 1 section 4 of the Constitution gives Congress the power to override a state's choices about the "times, places, and manner" of congressional elections held in the state. Article II section 1 gives the legislature of each state power to determine the “manner” in which its presidential electors are appointed, …

Un Tax Negotiations: North-South Tensions And The Challenge Of Institutional Legitimacy, Assaf Harpaz

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The drafting process for a United Nations Framework Convention on International Tax Cooperation, along with two early protocols, is now underway. A UN framework convention represents a Global South effort to shift international tax policymaking from the OECD to the UN. For developing countries, the UN has long been viewed as a more inclusive space for tax policy negotiations, producing more favorable but historically less influential standards compared to the OECD.

Support for the UN framework convention, including its terms of reference, has been sharply divided across traditional Global North-South lines. The backlash following the OECD’s recent two-pillar reform triggered …