Law Commons^™

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

William & Mary Law Review

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Medical Device Dangers: Choosing Ignorance In The Courts And At The Fda, George Horvath

William & Mary Law Review

Medical devices save lives and improve well-being but have caused as many as 83,000 deaths and 1.7 million injuries in a recent decade. Decisions of critical importance—patients’ decisions whether to have a device implanted, doctors’ decisions about which device to use, insurers’ decisions whether to reimburse for those devices—depend on information about risk that is provided by manufacturers. But producing this information is costly. Injured patients, through private lawsuits under state products liability theories, can incentivize device manufacturers to incur these costs and to produce and disclose information about device risk. Unfortunately, courts are making it increasingly unlikely that this …

Property Law For Positive Externalities: Carving New Sticks For The Bundle, J.B. Ruhl, James Salzman

William & Mary Law Review

Property law has long confronted a troubling puzzle: Why does doctrine focus so much on eliminating harms flowing as negative externalities from uses of property—curbing pollution, nuisances, and other harmful land uses—while largely ignoring the potential to encourage positive externalities? Why such a strong focus on preventing bads instead of promoting goods? Using a case of a natural capital resource and the ecosystem services of flood control, water purification, and pollination it provides, this Article explains how and why existing doctrine fails to recognize these benefits as distinct property interests, leading to systematic underinvestment in conservation and service provision. We …

Skrmetti And The Problem Of Incidental Intent, Martin Katz

William & Mary Law Review

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

International Governance Of Ocean Iron Fertilization Research: A Case Study Of The Proposed Exploring Ocean Iron Solutions Field Experiments, Ashwin Murthy, Romany M. Webb

Sabin Center for Climate Change Law

Ocean iron fertilization (OIF) has been a subject of scientific research since the 1980s. The primary international legal instruments regulating OIF are the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention or LC) and the 1996 Protocol to that Convention (London Protocol or LP). To guide regulation of research activities, under the LC and LP, the Assessment Framework was developed.

To demonstrate how domestic regulators might use the Assessment Framework, this paper explores its application to recently proposed OIF field trials advanced by the Exploring Ocean Iron Solutions (ExOIS) research consortium. …

Sounding The Alarm: The Role Of States In Monitoring The Federal Government, Christian G. Fritz

Faculty Scholarship

In December 2025, more than 40 bipartisan state legislative leaders from over 30 states, working through the National Conference of State Legislatures, issued a resolution titled “Federalism Restoration and State Empowerment.” The distinctive feature of American federalism has long been understood to be the distribution of powers between the national and state governments. This foundational element of our system of government—shared sovereignty—warrants revisiting by K-12 teachers and students. Although states may attempt to limit national power in ways such as withholding cooperation, exerting political pressure, and challenging federal authority through legal and institutional channels, this Digest focuses on the role …

When Antitrust Meets Labour: Exemption And Enforcement Under Article 101 Tfeu, Giulia Mangiafico

Yearbook of Antitrust and Regulatory Studies

Labour rights protection has recently emerged as one of the key objectives of antitrust law, alongside sustainability and privacy. The application and enforcement of competition rules differ significantly between the workers’ and employers’ sides of the market, a distinction that is particularly visible in cases concerning remuneration. Wage-setting may fall within the scope of Article 101 TFEU where it results from coordination between undertakings; whether competition law applies therefore depends on how wages are fixed. While employer cartels that suppress pay are treated as restrictive agreements, collective bargaining arrangements are assessed under a markedly different analytical framework. This article examines …

The Undue Degradation Of "Undue Degradation": How Loper Bright Threatens To Weaken Environmental Protections For Domestic Lithium Operations, Griffin M. Krawitz

William & Mary Law Review

On October 24, 2024, the Bureau of Land Management (BLM) approved the Rhyolite Ridge Lithium-Boron Project, a seven-thousand- acre mining operation in the middle of the Nevada desert. Denoted as the “first domestic lithium project to get full regulatory approval under the Biden Administration,” the new mine is projected to supply enough batteries to power roughly 370,000 electric vehicles (EVs) every year for the next twenty-three years. Despite concern that the mine parallels and threatens the habitat for the Tiehm’s buckwheat (the only known habitat containing the critically endangered and culturally significant flower), the BLM has been adamant that its …

Anselm Küsters, The Making And Unmaking Of Ordoliberal Language. A Digital Conceptual History Of European Competition Law, Verlag Vittorio Klostermann Frankfurt Am Main 2023, Piotr Oliński

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Is History Precedent?, Allison Orr Larsen

Faculty Publications

It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article “historical precedents”—meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for …

Reconceiving Safety Regulation For Ai And Ml Medical Software, Barbara J. Evans, Eric S. Rosenthal, Azra Bihorac

Vanderbilt Journal of Entertainment & Technology Law

This article explores the challenges of regulating AI and ML clinical decision support tools intended to assist trained health care professionals in delivering clinical care. Two old, twentieth-century regulatory models have dominated discussions of medical AI policy since 2013. Thinking inside these old regulatory boxes has not produced effective regulatory solutions to address the novel risks AI poses in clinical care. The first regulatory box treats software as a medical device, which tasks medical device regulators with making software safe but neglects the crucial roles physicians, nurses, administrators, medical practice regulators, and other health oversight bodies must also play to …

Differential Validity In Fair Lending, Spencer Caro, Talia B. Gillis, Scott Nelson

Faculty Scholarship

Fair lending’s disparate impact doctrine aims to address lending disparities. But which disparities? Traditional fair lending has narrowly focused on equal outcomes — examining differences in loan approval rates or interest rates. However, this singular focus overlooks other dimensions of disparities that are essential for fair credit access. This article challenges the conventional emphasis on equal outcomes, demonstrating how it has failed to address deep-rooted inequalities in traditional credit allocation while also stifling innovation in machine-learning and alternative data. We argue that disparities in the validity of creditworthiness predictions — the accuracy with which a model identifies creditworthy applicants — …

Where Can I Get Information About Osha And Miosha Regs?, Rachel Sinacola Dds, Ms, Mda Membership Department Staff

The Journal of the Michigan Dental Association

This question and answer column serves as a resource for dental practice management, directing members to information on OSHA and MIOSHA regulations, bloodborne pathogens, and needlestick protocols. It promotes the Donated Dental Services (DDS) program, highlighting CE opportunities and donated lab work. The source also provides details on the Certified Dental Business Professional (CDBP) credential and explains membership dues assistance programs, such as waivers and payment plans.

Government & Insurance Update, James Budd Mpp

The Journal of the Michigan Dental Association

This governmental update details Michigan House Bills 4593 and 4594, which aim to restore statutory standards for dental specialty advertising The proposed legislation restricts the use of specialty titles and letters to dentists who hold state-recognized specialty licenses in one of twelve specific fields, such as endodontics or pediatric dentistry Supported by the MDA, these bills seek to enhance patient protection and ensure transparency by preventing practitioners without accredited training from misleading the public.

J Mich Dent Assoc February 2026

The Journal of the Michigan Dental Association

Each month, the Journal of the Michigan Dental Association delivers news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It remains the main publication reaching Michigan dentists and is available worldwide through ADA Commons.

The February 2026 (Volume 108, No. 2) issue of the Journal is published in a digital format to provide updates and insights for Michigan's oral health community and MDA members. Print editions occur every other month beginning with January.

This issue includes feature articles on Risk Management and 2025 Servant Leadership as well as a clinical reprint …

News You Need, David Foe

The Journal of the Michigan Dental Association

This news update summarizes MDA Board of Trustees activities, including the 2026 budget approval and legislative advocacy for licensure reform and Social Security privacy. It promotes National Children’s Dental Health Month and the biennial Mission of Mercy event. The news covers the appointment of a new Chief Experience Officer, the launch of the MDA Matters video podcast, and announcements for scholarships and award-winners.

The Military’S Abortion Crisis In The Aftermath Of Dobbs V. Jackson Women’S Health Organization, Hugh Barrett Mcclean

All Faculty Scholarship

Women in the military have not had access to abortion care since 1978, when Congress introduced an amendment to a Department of Defense (DoD) appropriations bill, later codified under 10 U.S.C. § 1093, that prohibited the use of DoD funds for abortions. While women have endured this second-class health care for over four decades, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has created new problems for servicewomen and the military writ large. Now military women must travel off-base and, in some instances, out-of-state or out-of-country, to seek an abortion. While women in and out of uniform …

Flexible Funding Authorities To Support Tribal Climate Adaptation, Monte Mills, Sydney Anderson, Lauren Young

Articles

This project is part of a policy research effort intended to support Tribes, federal agencies, and Tribal and non-Tribal organizations in addressing some of the climate adaptation barriers and needs experienced by Northwest coastal Tribes. Accessing and administering Federal funds is a significant challenge for Tribes. Existing federal funding sources are often accompanied by rigid rules that make it difficult for Tribes to flexibly allocate funds as needed, and include strict qualification criteria that limit Tribal access to funds. Short-term funding cycles can be disruptive to long-term staffing and project needs, and are often misaligned with Tribal priorities.

A Citizenship Model Of The Fourth Amendment, Danieli Evans

Articles

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for …

Structuring A Practice Sale: The Basics, Daniel Schulte Jd

The Journal of the Michigan Dental Association

This legal column provides an overview of the basic structures involved in selling a dental practice. It distinguishes between equity interest sales, which often favor sellers through capital gains treatment and liability transfers, and asset sales, which buyers generally prefer to avoid liabilities and gain tax depreciation benefits. The author discusses the role of a Letter of Intent, the importance of due diligence, and professional valuation, urging practitioners to assemble a team of specialized legal and financial advisors.

The National Security Internet, Anupam Chander

Georgetown Law Faculty Publications and Other Works

In response to widespread foreign surveillance and growing geopolitical distrust, governments are erecting a national security internet. Pioneered by China, national firewalls have gone global. But where firewalls sought to keep information out, they now seek to keep data in. Governments keen to avoid their citizens’ data from falling into foreign hands demand not only that personal data be stored on local servers, but also require that it be stored on local servers by local companies—what this Article calls “data localization squared.” Enforcing this demand requires a new mechanism of transnational control: immunity from foreign jurisdiction. Artificial Intelligence (AI) systems, …

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Publications

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Reflections On Judicial Supervision Of Prosecutorial Powers, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The courts occasionally claim that the limits to the power to prosecute are different from the limits to other executive powers. They say that prosecutorial decisions are subject to judicial review on a reduced set of grounds compared to other executive decisions. I have previously argued that this approach is wrong, and aim to elaborate on the argument in this blog post. The focus will be on the laws of the UK and of Singapore, but it is hoped that the reflections here will be of some use in other common-law jurisdictions as well.

Modernising Wills For A Smart Nation, Hang Wu Tang, Edward Ti

Research Collection Yong Pung How School Of Law

In a commentary, SMU Lee Kong Chian Professor of Law Tang Hang Wu and SMU Associate Dean (Undergraduate Curriculum and Teaching) and Associate Professor of Law Edward Ti highlighted that Singapore has digitalised almost everything around the will, but not the will itself. Prof Tang and Assoc Prof Ti noted that the current legislation insists that the will itself remains a paper ritual, which is not just an inconvenience but also risks Singapore’s competitiveness. They argued that Singapore should modernise without compromising on steps to prevent fraud and undue influence. They highlighted that the law should be modernised so that …

The Case For An African Investment Court (Aic), Won L. Kidane

Faculty Publications

No abstract provided.

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism …

Priority Without Progress: The Fda's Neglected Tropical Disease Voucher Program After 18 Years, Maple Goh, Kevin Outterson, Aaron Kesselheim

Faculty Scholarship

Introduction: To incentivize drug and vaccine development for neglected tropical diseases (NTDs), US Congress created the Priority Review Voucher (PRV) program in 2007. Sponsors that obtain Food and Drug Administration (FDA) approval for an eligible product receive a voucher redeemable to accelerate review of another product.

Methods: We reviewed the program’s public health impact by examining all 14 vouchers awarded for NTD products between 2007 and 2024, including the timing of FDA approval relative to World Health Organization (WHO) Prequalification, Essential Medicines List inclusion, first use in endemic countries, and voucher disposition.

Results: Eight (57%) achieved WHO …

The Case For Ai Authorship In Copyright Law, Cheng Lim Saw, Duncan Lim

Research Collection Yong Pung How School Of Law

Today, with generative AI, literary and artistic works can be created almost effortlessly. There is at present intense debate as to whether works generated by AI – broadly categorised as “AI-assisted” and “AI-generated” works – ought to attract copyright protection. AI-assisted works are those that involve some degree of human intervention. Where AI-generated works are concerned, however, such works are created autonomously by the AI itself with minimal (de minimis) input from an identifiable human being. Presently, it is generally accepted that AI-generated works do not attract copyright protection for want of a human author. This article examines whether it …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.