Law Commons^™

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Faculty Scholarship

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Effect Of Provider Diversity On Racial Health Disparities: Evidence From The Military, Michael Frakes, Jonathan Gruber

Faculty Scholarship

We assess the relationship between the racial diversity of medical providers and racial health disparities in the use of preventive care and in patient outcomes. We use unique data from the Military Health System, where we observe providers as patients so that we can identify their race, and where moves across bases change exposure to provider race in a plausibly exogenous fashion. We consider patients with four chronic, deadly, but manageable illnesses, where the relationship with the provider may have the most direct impact on health. We find striking evidence that provider racial diversity leads to reduced disparities in maintenance …

The Eighth Amendment And Prison Staff-To-Sentenced Prisoner Sexual Violence, Matthew Lyskawa

Faculty Scholarship

In this Article, I provide the first comprehensive account of lower federal courts’ Eighth Amendment prison conditions jurisprudence regarding prison staff-to-sentenced prisoner sexual violence. I show that lower federal courts are systematically misunderstanding and misapplying Supreme Court case law in this context. The result is that sexually victimized prisoners must meet extremely burdensome doctrinal standards unique to sexual violence claims. Lower federal courts would faithfully follow Supreme Court precedent if they applied the excessive force standard to sexual assault claims and the conditions of confinement standard to sexual harassment claims. However, a faithful application of Supreme Court case law does …

Confession Contamination And Dna Exonerations, 1989-2025, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Llm-Assisted Legal Propositions Identification From Party Arguments In The U.S. Supreme Court Briefs, Heng Zheng, Alex Zhang

Faculty Scholarship

Merits briefs are central to U.S. litigation, serving as the primary means for parties to present arguments and persuade judges. Legal propositions in these merits briefs are the atomic units of arguments, whose relationships evolve throughout litigation and inform court decisions and precedent. Large language models (LLMs) have been applied to legal document review, but there is limited evidence on their ability to identify legal propositions in merits briefs. Given the labor-intensive nature of the task, we evaluate a human-AI collaborative approach to identifying legal propositions in the U.S. Supreme Court merits briefs, in which legal annotators review and revise …

Cumulative Burdens On Second Amendment Rights, Joseph Blocher, Hayley Lawrence

Faculty Scholarship

No abstract provided.

When Are Foot Pursuits Really Necessary?: How Improved Policies Might Reduce Community Harm, Sharon R. Fairley

Public Law and Legal Theory Working Papers

Despite the widely accepted view that foot pursuits are inherently dangerous for both police officers and citizens, a minority of municipal police agencies have adopted policies that have the potential to minimize the risk of harm by limiting the circumstances in which police officers are permitted to pursue a subject on foot. This paper presents data related to foot pursuit incidents and existing foot pursuit policies. The paper documents that most existing foot pursuit policies are limited in their potential to reduce unwarranted deadly encounters because the guidance they provide requires officers to consider and weigh vague concepts in tense, …

Regulatory Design Choices For Ai: The What, The Who And The How, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This chapter identifies three common design choices that must be made in the course of an effort to regulate artificial intelligence “AI”). By isolating the way in which those different sovereign regulators approach these choices in respect to AI, it is possible to evaluate more clearly the likely effects of regulation, and to better understand aspects of regulatory design that to date have been overlooked. First, the “what” of AI regulation is not just a matter of how “AI” is defined, but also which element of the technology stack is targeted by law: compute, data, or models. Second, the “who” …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

The Destruction Of The Climate Spending State, Adam D. Orford

Faculty Scholarship

The Biden Administration bet big on spending laws to forward its climate policies, creating a novel “climate spending state”in a field previously approached primarily through regulation. But the second Trump Administration, building on an aggressive theory of Presidential power, with support from bicameral Congressional majorities and a sympathetic Supreme Court, has dismantled the climate spending state with startling ease and speed. Although degradation of the federal workforce and legislative alterations to the tax code have played their part, it is the Trump Administration’s refusal to administer the spending laws enacted by prior Congresses that has had the most disruptive and …

Outbound Investment Restrictions And International Law’S Challenge, Harlan G. Cohen

Faculty Scholarship

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Untangling Ai Openness, Parth Nobel, Alan Z. Rozenshtein, Chinmayi Sharma

Faculty Scholarship

The debate over AI openness—whether to make components of an artificial intelligence system available for public inspection and modification—forces policymakers to balance innovation, democratized access, safety and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China’s Deepseek-R1, that rival our own. How we govern AI openness today will shape the future of AI and America’s role in it.   Policymakers and scholars grasp the …

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

The Law Of For Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case — which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System — has major implications for central bank independence in the United States and, more broadly, for the U.S. administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing “for cause” removal. In …

The One-Stop-Shop Is One Step In The Right Direction, Olivier Sylvain

Faculty Scholarship

In Brokering Safety, Sharma, Kadri, and Adler urge federal policymakers to impose on data brokers the greater duty of policing and stemming online stalking, harassment, and related abuse; that burden should not fall to victims, they argue. Their proposal would close the unevenness among state laws, shift the burden of oversight away from victims, and, importantly, ensure accountability at a systemic level, addressing gaps in enforcement that allow brokers to evade meaningful consequences. Yet, the one-stop-shop solution that Brokering Safety proposes also accedes to the core neoliberal presumption insofar as it individualizes harm. Online abuse, like dark patterns and …

Silencing As Blackening, I. Bennett Capers

Faculty Scholarship

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, …

Book Review Of Political And Social Control In China: The Consolidation Of Single-Party Rule, Carl F. Minzner

Faculty Scholarship

No abstract provided.

Small-World Simulations: A New Method To Test The Effect Of Legal Rules, Johannes Kruse

Coase-Sandor Institute for Law & Economics Research Paper Series

Small-world simulation exposes an artificial society to a legal rule and observes what its members do. The agents are driven by language models: their conduct is not stipulated in equations but reasoned in their own words. The architecture can be turned on any legal regime; personalized speed limits are the demonstration, chosen because rational-choice and behavioral predictions there conflict. Validated against documented driving patterns, the simulation generates behavior no one wrote into it. Because language models are trained on what people say rather than do, the method estimates orderings, not levels: a benchmark, not a substitute for evidence.

Relentless: The Pressures Shortening Law School Deanships And What Must Change, Katie Kempner, Patricia E. Roberts

Faculty Articles

It is no small thing when a law school loses its dean. The departure triggers a national search, stalls institutional momentum, disrupts fundraising, and requires rebuilding years of relationships with faculty, alumni, and university leadership, all while the institution navigates one of the most turbulent periods in legal education's history. Approximately 25 percent of the nation's law schools transition to a new dean in any given year. That reality prompted this study.

This study combined a survey of 624 current and former law school deans, which yielded 256 responses and data on 294 deanships, with 70 qualitative interviews conducted between …

Facts, Policy, And Discretion, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

Presidents, prosecutors, and judges often announce policies on how they will make discretionary decisions. These policies have met the criticism that discretion must be the product of an assessment of the particular facts of a case. Decisionmakers cannot base discretionary decisions on policy considerations, nor can they adopt policies stating how they intend to exercise their discretion. To do so, the argument goes, does not constitute an exercise of discretion, but rather an abdication of it.

This Article argues that this criticism misunderstands discretion. Discretionary decisions must rest on reasons, and reasons necessarily appeal to principles and policies that are …

Civil Death By A Thousand Cuts, Eisha Jain

Faculty Publications

Commentators have leveled trenchant critiques of collateral consequences of criminal conviction, analogizing them to a form of “civil death.” This Essay develops the related concept of “civil death by a thousand cuts” in two senses. First, penalties such as voting bans or deportation after a conviction are often just the tip of the iceberg. Second, a system of far-flung, intertwined civil and criminal penalties portends the death of a civil society capable of recognizing and mediating excessive penalties. Recognizing how these penalties operate—and how difficult they can be to address—is a critical step toward creating a more proportionate criminal legal …

A New 17 U.S.C. § 108a: Restoring The Intellectual Property Clause's Balance In Copyright Consideration Of Digital Disruption And The Prevalence Of Onerous Licensing Practices, Caroline L. Osborne

Faculty Publications

Accessibility of knowledge and control over information is key to an informed public and democracy. The founding fathers recognized the benefits of an informed citizenry, enshrining this concept in the Intellectual Property Clause of the Constitution. Such a clause created a delicate balance between creator and consumer, incentivizing creation for the benefit of society. The beauty of the Clause is the concept of balance. Balance resting delicately on the fulcrum with the dual requirements of reward for creation and benefit to society. The evolution of the means and formats in which information is delivered to the consumer in the creation …

Government Religious Speech And The Establishment Clause, Mark Storslee, Michael Helfand

Faculty Publications

The government says religious things. From monuments and holiday displays to legislative prayers, religion saturates the government’s public voice. But how can that be permissible when the Establishment Clause, at least in theory, indicates the government should be religiously neutral?

So far, the Supreme Court’s attempts to address the puzzle have come up short. Early on, the Court suggested that seemingly all government speech must be secular, or that it refrain from “endorsing” religion. But the Court never consistently enforced those limits, struggling to reconcile them with America’s historical experience. And in recent years, the Court has rejected those approaches …

Forum Shopping, Statutes Of Limitations, And Borrowing Statutes, John F. Coyle

Faculty Publications

When a claim is stale in one state but timely in another, a rational plaintiff will always file a lawsuit in the latter jurisdiction. To discourage plaintiffs from shopping around for the longest statute of limitations, thirty-six states have enacted laws known as borrowing statutes. A borrowing statute directs the state’s courts to apply the shorter statute of limitations of another state—typically the one where the cause of action arose—to bar the plaintiff’s claim.

The conventional wisdom holds that borrowing statutes merely restrain plaintiffs from filing lawsuits in out-of-the-way jurisdictions with no connection to the lawsuit. This Article reveals that, …

Distillation Laundering: Regulatory Arbitrage And A Potential Beijing Effect In Ai, Laura Edelson, Filippo Lancieri

Georgetown Law Faculty Publications and Other Works

This essay introduces distillation laundering, a new form of regulatory arbitrage. Distillation, a technique for training large language models based on the outputs of other models instead of from scratch, is generally prohibited by the terms of service of closed-weight frontier models. However, it is economically efficient and has been key to the success of the cheap, distilled (largely Chinese) open-weight models, which have reshaped the global political economy of AI regulation. US companies have now begun to re-import the effects of distillation through various means—a process we call distillation laundering. We also discuss how attempts to lobby these models …

Analysis Of Policies And Incentives For The Successful Implementation Of Hydrogen-Fueled Medium-Duty And Heavy-Duty Vehicles In Humboldt County, California, Alka Verma

Cal Poly Humboldt theses and projects

The 21st century has seen a significant rise in global greenhouse gas (GHG) emissions, with the transportation sector contributing 23% of these emissions. Medium-duty and heavy-duty vehicles (MD/HD) are particularly impactful, accounting for over a quarter of transport-related emissions. In Humboldt County, California, transportation represents 53% of total emissions, with MD/HD vehicles being a major contributor. As light-duty vehicles shift to zero-emission alternatives, the MD/HD sector faces unique challenges. Hydrogen fuel cell vehicles offer a promising solution, providing longer range, higher energy density, and quicker refueling compared to battery electric vehicles (BEVs). These features make hydrogen an attractive option for …

Open Secrets, Robin C. Feldman, Vaughn Goehrig

Faculty Scholarship

Patents and trade secrets were never intended to meet, but in the world of biologic drugs, they've become as thick as thieves. Patent law's disclosure requirement has demanded far too little of biologics manufacturers-allowing them to keep vital manufacturing details under trade secret lock and key. This intellectual property patchwork has been devastating for drug affordability: Because the most critical manufacturing information remains hidden, makers of follow-on biologics (called biosimilars) are often stuck reinventing the wheel, even after the original patents have expired.

This Article makes two principal contributions to illuminating this problem. First, it presents, for the first time …

Front Matter, Natural Resources Journal Nrj

Natural Resources Journal

No abstract provided.