Law Commons^™

From Ambiguity To Overreach: The Ftc's Questionable Authority To Ban Non-Competes, Taylor Ray Pelton

Cybaris®

No abstract provided.

Patching The Cfaa So Researchers No Longer Pay, Joshua Baker

Cybaris®

No abstract provided.

Offshore Tax Havens: An Intriguing Problem For Canadian Tax Law, Jinyan Li, Angelo Nikolakakis

Articles & Book Chapters

The use of offshore tax havens by Canadians and multinational enterprises is an intriguing problem for Canadian tax law. This submission explains why that is the case and recommends a systematic review of the existing law and specific reform ideas.

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

The Artificial Intelligence Trolley Problem, James Cooper, Kashyap Kompella

Faculty Scholarship

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Cover Page

NYLS Law Review

No abstract provided.

Legalized Surveillance: The Historical To Modern Policing Of Black Life, Nile Blass

Upper Level Writing Requirement Research Papers

No abstract provided.

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

Judicature International

No abstract provided.

Social Justice Unionism: Intersectionality In The Twenty-First Century Workplace, Shirley Lin

Faculty Scholarship

No abstract provided.

The Dangers Of The Current “Global Deregulatory Drive” In Financial Regulation: Written Testimony Submitted To The Uk House Of Lords Financial Services Regulation Committee, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This written testimony was submitted to the UK House of Lords Financial Services Regulation Committee in response to the Committee’s “Call for Evidence” regarding the growth of private credit markets since the global financial crisis of 2007-09 (https://committees.parliament.uk/work/9235/growth-of-private-markets-in-the-uk-following-reforms-introduced-after-2008). This written testimony was tendered in conjunction with the author’s oral testimony before the Committee on July 23, 2025, and addresses the following points:

1. As past deregulatory episodes have shown, the current “global deregulatory drive” to loosen financial regulation is likely to endanger global financial markets by encouraging excessive risk-taking by large banks and further expansion of “shadow banking” …

Parafamily, Christina Mulligan

Faculty Scholarship

No abstract provided.

Gendered Liberty, Laura Portuondo

Faculty Scholarship

No abstract provided.

Access Or Sovereignty, John T. Holden

Emory Law Journal

Despite centuries of genocidal assimilation and forced removal, Indigenous communities in the United States have persevered and even thrived. A key driver of economic success for many tribes is gambling. While states objected, perhaps out of greed, the Supreme Court held that, as sovereign governments, gaming operations on tribal land were largely beyond the reach of state governments and law enforcement. The Supreme Court’s Cabazon decision furthered a congressional push to develop a negotiated solution to recognize Indigenous communities’ rights as sovereigns while balancing states’ desire to limit the volume of gambling taking place within their borders. The Indian Gaming …

Health Is Wealth: Strengthening Plaintiffs’ Ability To Confer Standing In Health Information Data Breach Cases, Kayla M. O'Brien

Emory Law Journal

Individuals’ health information is increasingly at risk of data breaches as healthcare providers adopt health information technologies and individuals use digital devices and applications to log their health data. The frequency of data breaches involving health information has escalated year after year, and, as a result, more individuals are seeking recourse in federal court. To proceed in federal court, however, these individuals must have Article III standing, and meeting the injury-in-fact requirement to confer standing has been a difficult hurdle for plaintiffs in data breach cases to overcome. Federal courts have narrowly interpreted what constitutes a concrete harm stemming from …

The Protection Of “Style” Under Copyright And Its Application To Generative Artificial Intelligence, David Lane Nielsen

Emory Law Journal

Since it began to pick up steam in the mid-2010s, generative Artificial Intelligence (AI) has quickly developed breathtaking capabilities. It has found applications in a great variety of industries, and in the last couple of years it has developed to the point where it has captured public attention by producing artistic works that match the quality of human-made works. While bringing great advantages, this development is not without concern, especially within the artistic community. Much has been made of the use of artists’ works in training generative AI, the likely replacement of artists with AI models, and the threat these …

Technological Readiness Versus Disruption: A Framework For Assessing Distinct Artificial Intelligence Policy Strategies, Orly Lobel

Emory Law Journal

Artificial intelligence (“AI”) is here and rapidly advancing. As the 2024 Thrower Symposium of the Emory Law Journal demonstrated, developments in the integration of AI to all aspects of life raise fundamental challenges for legal scholars and policymakers about the desirability and legitimacy of algorithmic decision-making, the societal impact of automation, and the liability, ownership, and regulatory puzzles created by substituting human actions with AI systems. This Article provides a framework for analyzing the readiness and desirability of contemporary technological innovation while continuing to address the effects and impact of technological shifts on the labor market, social welfare, and democracy. …

Civil Society And The Crisis Of Privacy Law, Ari Ezra Waldman

Emory Law Journal

Based on interviews with key players, public reports, and previously undisclosed primary sources, this Article tells the inside story of the American Data Privacy and Protection Act (ADPPA) and the role of privacy nonprofit organizations in crafting it. It uses ADPPA’s drafting as a case study about larger questions of expertise, the lawmaking process, and the role of law in setting the context of advocacy. The Article’s descriptive argument is that background law and the dynamics of privacy policymaking in the United States Congress channeled and constrained the choices made by privacy civil society organizations while negotiating and drafting key …

A Deep Look At Copyright’S Volitional Conduct Doctrine And Generative Artificial Intelligence, Aleksander J. Goranin

Emory Law Journal

This Article examines copyright’s volitional conduct doctrine, as applied to generative artificial intelligence (AI) systems. It traces the doctrine’s origins and evolution through key court decisions, analyzing its underlying rationale as a response to the harshness of the RAM copy rule and its elaboration as a proximate causation doctrine. The Article then evaluates how classic volitional conduct analogies to copy shops and photocopies may fit generative AI systems. Ultimately, the Article proposes a jury instruction to guide application of the volitional conduct doctrine in generative AI cases. The Article argues that the doctrine serves an important role in copyright law, …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Emory Law Journal

Generative AI, machine learning, and other computational uses of copyrighted works pose profound conceptual questions for copyright law. This Article surveys multiple countries with different legal traditions and local conditions to explore how they have responded to these questions in relation to the use of copyrighted works for AI training without express permission from the relevant rightsholders. Our survey suggests an emerging international equilibrium in which jurisdictions from around the world have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text and data mining, computational data analysis, and AI training can be socially …

Our Progressively Brutal Constitution: A Legal Expressivist Account Of The Excessive Force Doctrine, Danielle C. Jefferis

Emory Law Journal

The Constitution forbids some forms of physical violence. However, the scope of its protection depends on the legal status of the person subjected to the violence. The Fourth Amendment protects a person outside the criminal legal system from a state actor’s “objectively unreasonable” force. A pre-trial detainee has a similar, though weaker, right under the Due Process Clause. But after conviction, a person’s right of protection from state violence has nearly vanished: the Eighth Amendment prohibits only force applied “maliciously and sadistically for the very purpose of causing harm.” Rather than meaningfully limiting state violence, this doctrine constructs a constitutional …

Playing Politics: Social Media, Censorship, And Speech Gamification, Khaled A. Beydoun

Emory Law Journal

Forty percent of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez-faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.

As such, the primary threat to free speech today is not the state …

A Haven For Polluters: Examining Cercla Successor Liability Under State Law, Hannah R. Behar

Emory Law Journal

This Comment explores how businesses exploit variability in state corporate law to evade liability for hazardous waste pollution. In particular, it examines the tension between the successor liability doctrine and environmental accountability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While CERCLA purports to hold polluters responsible for site cleanup under a broad liability scheme, some states have effectively—through limiting statutes and rigid judicial interpretation—allowed businesses to retain control of environmental assets while casting off associated liabilities. This trend is particularly concerning because most jurisdictions apply state law, as opposed to a uniform federal rule, when considering …

Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Grosso, Catherine M., Laurence, Michael, Fagan, Jeffrey

Santa Clara Law Review

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

Collaborative Efforts To Combat Racism: Academics And Criminal Defense Lawyers In The Pursuit Of Racial Justice In California, Alvarez, Karina, Cameron-Wedding, Dr. Rita

Santa Clara Law Review

Lawyers and academics frequently cooperate to shape public policy and outcomes in specific cases, including in the area of racial justice. However, too frequently, lawyers and academics operate in silos—working towards the same goal of racial justice, but in different arenas. Lawyers are bound to their clients, foremost, and to advocacy before the court—often so much so that they might lose sight of broader challenges, achievements, and theories in racial justice. By contrast, academics spend their lives in the abstract, leaving them at risk of losing sight of the on-the-ground impact of their expert theoretical advances. This article aims to …

Conservative Family Values As Constitutional Law: Private Regulation And The Erosion Of Fundamental Rights, Spera, Clara, Fleming, Katherine

Santa Clara Law Review

This Article examines a paradox in contemporary constitutional law: While constitutional rights traditionally protect minorities against majority preferences, the Supreme Court has increasingly enabled certain private actors to override others’ constitutionally protected family formation choices through what this Article calls “private regulation.” The Court’s decisions allow individual private actors to impose traditional religious and moral views on others who do not share those beliefs, while simultaneously embedding those very views in constitutional jurisprudence. This dual approach creates a troubling inversion. Instead of constitutional rights serving their traditional function of protecting minorities from majority overreach, they are being used to empower …

Esg In Space: Creating An Effective Space Governance System By Using Terrestrial Esg Principles To Properly Regulate Private Space Actors, Hu, Phillip S.

Santa Clara Law Review

As the privatization of space accelerates, concerns arise about the potential for unregulated exploitation of celestial resources by private companies. From setting up extraterrestrial colonies to exploiting asteroids, private space companies have long aimed to tap into the riches of the cosmos. Our current legal framework is not prepared for the huge influx of new private space actors, all while new regulation has trailed the fast-paced space industry and its advances. For an effective space governance system to be created, a new regulatory framework that helps regulate private space actors must be created.

This Note argues for the application of …

“That Class Changed My Life”: Using Transformative Learning Theory To Teach Leadership, Mitchell, Jane

Santa Clara Law Review

Since the country’s founding, the legal profession has served as a springboard for some of society’s greatest leaders. But by and large, lawyers were not trained to lead—until recently. Over the last fifteen years, law schools have become increasingly intentional about leadership development. Leadership programs in law schools have proliferated, as has a growing body of scholarship on lawyer leadership.

Surprisingly, the literature on lawyer-leader development has neglected adult learning theories. This Article addresses that gap and grounds the teaching of leadership in a well-established theoretical tradition. It presents the results of a design-based research study that applies Mezirow’s transformative …

Addressing Witness Coaching By Cross-Examination, Gregory C. Sisk

St. Mary's Journal on Legal Malpractice & Ethics

In preparing a witness, may a lawyer script the testimony by taking the witness through repeated rehearsals to fabricate a narrative in the form directed by the lawyer and to use words that the lawyer suggests are more favorable for the represented party? Suppose the lawyer believes a suggestion to the witness regarding the specific substance or word choice of testimony does not introduce a falsehood but rather produces a more favorable spin on the witness narrative. May the lawyer justify that shaping of testimonial content as legitimate zealous representation of a client?

Given that any such suggestion by the …

Our Ai, Ourselves: Illuminating The Human Fears Animating Early Regulatory Responses To The Use Of Generative Ai In The Practice Of Law, Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

Generative artificial intelligence is changing the way lawyers work, and with those changes have come questions and concerns about how it should be regulated. Those questions and concerns, particularly on the individual level, are driven by fears about the implications of the use of generative AI. This Article identifies and explores the fears that drive these regulatory responses: fear of exposing judicial fallibility, anxiety over AI replacing human lawyers, and concerns about missing out on AI’s potential benefits. Ultimately, effective regulation of the use of generative AI in legal practice needs to be attentive to the fears and hopes surrounding …

Trading Places: An Education For Legal Employers: A View From The Perspective Of A New Generation Of Legal Talent, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Most lawyers remember the stress associated with walking into their first job interview. The goal being to get the interviewer to “pick me.” Today, legal employers need to be prepared to be more of the interviewee than the interviewer in the hiring process. Over the past few decades, much focus has been on identifying the skills essential to success in the legal profession—mainly those skills and traits legal employers view as important when hiring new associates. These findings led to changes in legal education in order to prepare law students for entering the employment market and successfully securing a position. …