Law Commons^™

Off-Label Neuroimaging, Jane C. Moriarty

Law Faculty Publications

The growth of neuroimaging evidence in the courtroom is consistent with the increased reliance on technical and machine-based specialties at trial. Litigants routinely seek to introduce neuroimaging evidence in both civil and criminal trials to supplement traditional medical, psychiatric, and psychological opinion testimony. A substantial portion of neuroimaging evidence is still in the developmental stage—what I term “off-label neuroimaging.” Unsurprisingly, evaluating the reliability of developing neuroimaging poses challenging questions for gatekeeping courts. Among the complex evidentiary issues neuroimaging presents for courts and litigants, this Article considers one foundational question: How should courts determine whether neuroimaging evidence is sufficiently reliable for …

The Gender Of International Criminal Law, Caroline L. Davidson

Michigan Journal of International Law

Notwithstanding the recognition of select gender-based crimes as international crimes and the International Criminal Court’s prosecutors’ professed commitment to seeking justice for gender-based crimes, core doctrines of international criminal law (ICL) obstruct accountability for gendered violence. This article identifies the overlooked gendered implications of a few substantive pillars of ICL: a de facto insistence on a connection to war (“war fetish”), a preoccupation with powerful men, and a focus on the “mastermind” of the crime to the exclusion of other culpable perpetrators.

These substantive pillars, some long-standing and some more recently erected, obscure the vast landscape of gender-based crimes and …

Comment On Opm’S Confidential Government Information Nondisclosure Agreement, Rachel Arnow-Richman, Mark Fenster, Jonathan F. Harris, Margaret B. Kwoka, Orly Lobel

UF Law Faculty Publications

This comment critically responds to the U.S. Office of Personnel Management's (OPM) May 2026 proposal to implement a government-wide nondisclosure agreement (NDA) for federal workers. Drawing from our scholarship on workplace governance, employee mobility, whistleblowing, and information controls, we argue that the OPM’s proposal is inconsistent with growing recognition of the risks associated with broad workplace secrecy agreements. Recent federal and state reforms limiting the use of NDAs recognize that such agreements can deter reporting, suppress information of public concern, and impede litigants and government actors from prosecuting wrongdoing. TThese concerns are especially salient in the context of public employment, …

Analyzing The Legal Enforceability Of Bdsm Contracts Between Sex Workers And Clients, Sam Wise

Journal of Law and Policy

Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable to enter contracts to protect themselves from potential harm. Those who practice BDSM have indeed often turned to contract creation to memorialize the sexual agreements they have made with each other. Sex workers may especially seek to protect themselves from the harm that could result from …

From Self-Representation To Smart Representation: How Ai & Self-Help Services Can Strengthen Pro Se Litigation, John W. Park

Journal of Law and Policy

The American legal system has long struggled with the gap between those who can afford counsel and those who cannot, leaving millions of pro se litigants to navigate complex civil proceedings alone and lose at staggering rates. Yet, over decades of incremental reform, existing self-help infrastructure has failed to keep pace with the growing pro se crisis or the rapid technological advancement that now gives represented parties an unprecedented advantage. Meanwhile, law firms and attorneys increasingly harness law firm tailored AI programs that are generally unavailable to the unrepresented litigant. This technological asymmetry has transformed an already significant capability gap …

Regulating Psychological Wellness Grifters, Jennifer D. Oliva

Georgia State University Law Review

The rapid expansion of social media has transformed the delivery of psychological wellness advice, shifting mental health guidance from licensed professionals to digital influencers operating outside of traditional regulatory frameworks. As the global wellness industry surpasses $2 trillion, millions of Americans—particularly adolescents and young adults—consume mental health content from uncredentialed creators who often monetize psychological distress without professional oversight. Documented harms include misinformation about psychiatric medications, improper management of suicidality, unqualified diagnostic claims, and the migration of disciplined clinicians into unregulated “life coaching” roles.

This Article argues that state professional licensing regimes—governing psychologists, clinical social workers, professional counselors, and marriage …

Staying Off The Android’S Couch: Examining The Burgeoning Regulatory Response To Ai Chatbots In Mental Health Care, Hon. John G. Browning

Georgia State University Law Review

In 2023, the National Eating Disorders Association (NEDA) was forced to remove its AI chatbot “Tessa” from its help hotline after observations of the chatbot providing harmful advice to callers about eating disorders. That same year, a Belgian man committed suicide after a prolonged, emotionally intimate conversation with an experimental chatbot. Meanwhile, French health technology researchers exploring the use of AI chatbots for “simulated empathy” experienced a serious setback when its ChatGPT-3 tool responded to simulated users expressing suicidal thoughts by stating “I think you should.” Closer to home, American AI researchers using Meta’s Llama-3 caught the chatbot giving a …

Addressing Homelessness And Hunger Through A Human Rights Approach Focused On Collective Responses, R. Denisse Córdova Montes, Tamar Ezer

Georgia State University Law Review

The United States is experiencing unprecedented levels of homelessness and food insecurity. In 2024, the number of unhoused persons on a single night reached the highest ever recorded, and in 2023, 13.5% of the population lived in food insecure households, including 7.2 million children. Both homelessness and food insecurity disproportionately impact individuals based on race and gender.

In this context, community-led tools, such as community kitchen events and public feedings, have played an important role in providing those experiencing extreme hardship with access to adequate food and safe community spaces.

However, rather than supporting these efforts or addressing the root …

Bodies In The Beds: How Reits, Private Equity Firms, And County Hospitals Monetize Nursing Home Residents As Real Estate Acquisitions, Daniel L. Hatcher

Georgia State University Law Review

Nursing home residents have become monetized targets of real estate acquisitions. Established in 1960, Real Estate Investment Trusts (REITs) were envisioned as allowing individuals to invest in commercial real estate without owning properties. That seemingly innocuous investment idea has led to the growth of a behind-the-scenes empire of little-understood conglomerates of REITs buying up nursing homes and other healthcare facilities across the country. Capitalizing on tax-exempt income incentives, exploiting “triple-net” leasebacks, funneling profits through subsidiaries, and shielding ownership and assets from the liability of operations, the corporatized owners extract cash from facilities and leave harm in their wake. And to …

A Social Prescription For Loneliness: How Regulation Can Help Prevent A Tsunami Of Health Problems Through Social Connection, Laura C. Hoffman

Georgia State University Law Review

In May 2023, the U.S. Surgeon General declared loneliness a public health crisis. Despite the impact of the Covid-19 pandemic, research has demonstrated that historically, social isolation and loneliness have been long-term influencers of negative health consequences prior to the pandemic. Even in our post-pandemic world, things have not improved and in fact, worsened. The significance of social connection to an individual’s health and overall well-being is evident and more frequently being recognized through the social determinants of health (SDoH).

One of the more recent developments in this area has been doctors routinely evaluating their patients for social isolation and …

Law, Narrative, And Health, Elizabeth Tobin-Tyler

Georgia State University Law Review

No abstract provided.

How The President’S Lawyers Use Law To Weaken The Rule Of Law, Scott L. Cummings

University of the Pacific Law Review

No abstract provided.

Every Knee Must Bend: What The Death Penalty Requires From The Rule Of Law, Corinna B. Lain

University of the Pacific Law Review

No abstract provided.

Beyond The Veil Of Modernity: René Guénon, Prophet Of The Metapolitical Imaginary, Frederic Colier

Dissertations, Theses, and Capstone Projects

Heralded by some as one of the greatest intellectuals of the 20th century, French metaphysician René Guénon (1886-1951) is also the controversial father of Primordial Tradition, a metaphysics designed to remedy the decline of Western civilization. Guénon viewed the West in the grip of a prolonged cycle of degeneration. He sought to implement a pseudo-authoritarian spiritual reset that required a total rejection of its Western intellectual heritage and an embrace of Eastern doctrines.

Focusing on his landmark book The Crisis of the Modern World (1927), the dissertation examines how Guénon implemented his controversial reset. After outlining the religious, cultural, and …

Lethal Autonomous Weapons Systems And The Principles Of Distinction And Proportionality, Nicholas Cromie

Dissertations, Theses, and Capstone Projects

Lethal Autonomous Weapons Systems (LAWS) challenge the core principles of International Humanitarian Law (IHL), distinction and proportionality, by delegating life-and-death decisions to algorithms rather than human judgment.  This dissertation examines whether LAWS can conform to these principles and, if so, under what conditions.  Through process tracing, the study traces the historical integration of disruptive weapons technologies, including chemical, biological, nuclear, and armed drones, into IHL-compliant frameworks or their exclusion via prohibition.  Each case reveals distinct pathways: outright bans for indiscriminate or inherently inhumane systems (chemical and biological weapons), normative restraint and limited acceptance despite destructive power (nuclear weapons) and phased …

Sexual Communications, Digital Intimacy, And The Extremely Limited Admissibility Of Evidence Of A Complainant’S Intention To Consent, Elaine Craig

Dalhousie Law Journal

Research indicates that women are less likely than men to have any intention of actually engaging in the sexual activities they communicate about digitally, and men are more likely than women to assume that sexual text messages indicate an intention to engage in sex “in real life.” Sexting often reflects a highly stylized, performance-based, uninhibited and sometimes disinhibited form of discourse that distinguishes it from in-person communications. It is frequently open to interpretation and only rarely can these communications reasonably be said to reveal a reliable and non-discriminatory inference about a complainant’s actual sexual intentions for the future, let alone …

Enforcing The First Amendment In An Era Of Jawboning, Genevieve Lakier

University of Chicago Law Review

First Amendment law tends to focus on the exercise of formal government power. Nevertheless, for over six decades now, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates what the Court described in Bantam Books v. Sullivan as an “informal system of censorship,” outside the reach of the formal system. Lower courts have been deeply divided, however, about what kinds of government actions create this kind of informal system. The Court’s recent decision in NRA v. Vullo should end this division. In Vullo, the Court held that officials …

When A Mass Resignation Becomes A Merger: Rethinking Asset Acquisitions For The Ai Era, Nina Fridman

University of Chicago Law Review

The Microsoft–Inflection AI deal shocked Silicon Valley: Nearly all seventy of Inflection’s employees resigned simultaneously to join Microsoft, which then paid the startup’s shell $650 million. After the mass exodus, Inflection appointed new leadership that switched the company’s direction, while Microsoft assumed the mantle of Inflection’s old mission. The competitive effect was thus nearly identical to that of a traditional acquisition. But relying on their novel deal structure to shield them from regulatory requirements, Microsoft and Inflection barreled ahead without filing a notice of the transaction with regulators. The rest of the industry soon followed suit, with Amazon, Google, and …

Quasi-Judicial Immunity Misapplied, Claire Hodges

University of Chicago Law Review

Multiple circuit courts have extended quasi-judicial immunity—a form of judicially derived, absolute immunity—to sheriffs, marshals, and bailiffs when they execute judicial orders. In some circuits, that immunity extension covers the use of excessive force by the officer, even if that force is outside the scope of the order they are executing.

This Comment argues that the trend of lower courts extending quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court’s absolute immunity doctrine. A survey of the opinions in which the Court has granted absolute immunity to a government official reveals four considerations guiding the Court’s decision. The …

The Administrative Law Of Mccarthyism, Nicholas Handler

Faculty Scholarship

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC …

Owning Geothermal Energy, Gabriel Eckstein

Faculty Scholarship

Geothermal energy holds vast potential for decarbonizing the U.S. energy system, yet the sector remains significantly underdeveloped, supplying only 0.4% of the nation's electricity. A principal barrier to growth is the fragmented and ambiguous legal landscape currently governing ownership of geothermal resources: thirty-three states lack any clear statutory or common-law framework identifying who owns subsurface thermal energy. This Article examines the physical characteristics of geothermal energy, recent developments in the U.S. geothermal sector, and the principal doctrinal approaches that might govern ownership of subsurface heat, including the ad coelum doctrine, common-pool and open-access frameworks, the rule of capture, and public …

Aggregation And The “Universal” Injunction, Portia Pedro, Adam N. Steinman

Faculty Scholarship

In this Essay, we begin with a brief summary of the CASA decision’s holding regarding the availability of “universal” injunctions. Part II discusses the relationship between remedies and judicial review and the important role that such injunctions play in that regard. Part III explores how class actions could serve as an alternative path for federal courts, after engaging in judicial review, to make their decisions meaningful by requiring officials to comply with the law and to cease illegal actions or policies. We also respond to several objections to the use of class actions in this context. The final Part addresses …

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Making The Party Presentation Principle Safe For Originalism, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of …

Evolving Networks: Information Exchanges Reshaping Of Global Finance, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

This article challenges the characterization of international financial centers (IFCs), often called "tax havens," as enablers of tax evasion and money laundering. Drawing on an extensive analysis of tax treaties, regulatory statutes, and historical literature, we explore the evolution of the global information exchange network, its impact on integrating IFCs into the global financial system, and the resulting curtailment of their use for illicit purposes. The expansion of treaties, from Mutual Legal Assistance Treaties (MLATs) to Tax Information Exchange Agreements (TIEAs) and multilateral frameworks like the OECD's Common Reporting Standard (CRS), has significantly limited the potential for secrecy-driven financial activities …

Jurisdictional Waters, Jamison E. Colburn

Faculty Scholarship

No abstract provided.

Ai Suppression: E-Discovery Software And Brady, Jason Hartline, Liren Shan, Alec Sun, Rebecca Wexler

Faculty Scholarship

Prosecutors regularly rely on AI e-discovery software, known as technology assisted review (TAR) tools, to sort and prioritize digital evidence. These tools implicate constitutional concerns: they can either risk suppressing or help to surface exculpatory and impeachment evidence that prosecutors must disclose under the Brady due process rule. Yet doctrine, agency guidance, and scholarship offer virtually no direction on their use.

This Article examines how TAR affects Brady compliance. Using computer science simulations on synthetic data sets, we show that TAR can either hide or help to expose Brady evidence, depending on how it is configured and the configurations of …

Dentistry And The Law: The Need To Designate A Patient Of Record, Daniel Schulte Jd

The Journal of the Michigan Dental Association

This legal column addresses the legality of delegating dental procedures to hygienists before a dentist has examined the patient. Author Dan Schulte clarifies that under Michigan’s Administrative Code, procedures may only be delegated if the individual is a "patient of record". This status requires a dentist to have personally performed an evaluation and diagnosis within the previous 24 months. Consequently, seeing new patients for cleanings or X-rays before a dentist's involvement is non-compliant with state law.

Staff Matters: How Much Time Off Should I Give For Bereavement?, Jodi Schafer Sphr, Shrm-Scp

The Journal of the Michigan Dental Association

Author Jodi Schafer provides guidance for dental practices on developing clear and consistent bereavement leave policies. She notes that while no federal law requires bereavement leave, standard employer practice typically offers three to five days for immediate family members. The article emphasizes balancing compassion for grieving employees with the operational needs of the practice. Key considerations include whether leave is paid, the definition of covered relationships, and the importance of flexibility, as grief often extends beyond a formal leave period.

Line Warming: Improperly Influencing Voters Or Mitigating The Effects Of Voter Suppression?, Elizabeth Ellen Gordon

Nevada Law Journal

No abstract provided.