Law Commons^™

Understanding The Duty Of Competence For Attorneys Using Generative Ai, Anna Conley

North Carolina Journal of Law & Technology

No abstract provided.

Scientific Muse And Misuse: Reevaluating Authorship Attribution And Liability Allocation In The Generative Ai Age, Inbar Cohen Ganot

North Carolina Journal of Law & Technology

No abstract provided.

Future Crime: A Theoretical Foundation For Designing Effective Cybercrime Laws In The Age Of Ai And Ransomware, Thi Ha Do, Niloufer Selvadurai

North Carolina Journal of Law & Technology

No abstract provided.

The Splintering Of American Public Law, Marco Basile

University of Chicago Law Review

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently …

In Search Of A Judicial Taking, Coby Goldberg

University of Chicago Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking …

Drive-By Mediation And Other Opportunistic Distortions Of Process, Nancy A. Welsh

Faculty Scholarship

Many states in the United States, along with many nations, have implemented special benefits and privileges to encourage parties’ use of mediation to assist their communication, negotiation, and ultimate resolution of disputes. This is despite how loosely mediation is defined. This Article discusses how vague definitions, paired with special benefits and privileges, are incentivizing both the opportunistic distortion of mediation and the use of mediation for improper purposes. In Texas, for example, judges are extraordinarily limited in their ability to disapprove parents’ mediated child custody agreements—even if there is reason to worry that an agreement is contrary to the best …

The Gamification Of Banking, Colleen Baker, Christopher K. Odinet

Faculty Scholarship

Gamification is coming to banking. This phenomenon is already gain-ing ground in advertising, healthcare, manufacturing, and, more recently, with the GameStop and AMC meme stock saga in securities trading. The idea behind gamification is to make transactions seem fun, playful, and even casino-like in order to elicit habit-forming, addictive-like effects with consumers. This Article argues that the rise of financial technology (“fintech”) firms and their ever-growing business relationships with incumbent financial institutions has created the necessary conditions for gamification to take hold in the banking sector. In order to explore this observation, we undertake a study of current examples of …

Judicial Enforcement Of Evidence Law, G. Alexander Nunn

Faculty Scholarship

The truth matters. At least it should. In the courtroom, truth can serve as the cornerstone of justice, liberating the innocent, vindicating victims, and holding the guilty to account. Indeed, truth is such a normative imperative that an entire legal discipline now focuses on fostering its discovery at trial—evidence law. By regulating both the reliability of proof and the rationality of cognitive inferences, evidence law seeks to help factfinders discern truth and reach an accurate verdict. And given the importance of that role, one might naturally assume that the strict enforcement of evidence law would be a legal mandate of …

The Sec Proposed Cybersecurity Infrastructure Rules And New Disclosure Requirements, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

In addition to regulation of securities market issuers, the Securities & Exchange Commission (SEC) is also responsible for regulation of those entities that provide the networks, either electronic or physical, that enable the functioning of our securities markets. On February 9, 2022, the Commission published a Release for Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies containing proposals that, if adopted, would establish a new cybersecurity incident reporting and disclosure regime and require registered investment advisers (“advisers”) and investment companies (“funds”) to implement policies and procedures designed to address cyber risks. The comment period for …

Traditional And Computational Canons, Eric H. Martinez

Faculty Scholarship

As part of the rise of modern textualism, dictionaries and linguistic canons have become a ubiquitous part of legal interpretation. One longstanding question is whether judges citing these tools sincerely attempt to follow the meaning of a text, or if their invocation is merely window-dressing for a preferred outcome. The practical significance of this question extends across all major doctrinal areas, and with the Supreme Court’s overturning of Chevron deference, its importance is only to grow, as courts are now instructed to use every tool at their disposal to resolve ambiguity when interpreting a law. This Article is the first …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2024 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress. The 2022 Amendments to the Uniform Commercial Code ("U.C.C.") (the "2022 Amendments")' have been adopted in thirty-one states plus the District of Colombia and introduced in six states.

The Crime Of Being Immoral, Randy D. Gordon

Faculty Scholarship

Despite a general abhorrence of retrospective laws as a matter of legal theory and Constitutional dictate, US. courts continue-in es sence-to create new crimes by injecting fazzy moral considerations into determinations under the federal fraud statutes. They do so by deeming a failure to act with "moral uprightness" sufficient to consti tute criminal fraud. Under such an amorphous standard, the unwitting find themselves in a legal bind, even though their conduct may not in volve any of the traditional elements of common-law fraud. This Article traces the roots of novel fraud theories with tools drawn from legal theory, linguistics, and …

Caremark's Politics, Itai Fiegenbaum

Cardozo Law Review

What propels the evolution of Delaware corporate law? In a series of persuasive articles, Professor Mark Roe explains Delaware corporate law developments as an effort to preempt federal intervention. If public outrage over corporate governance failures reaches Congress, federal lawmakers may impose reforms that undercut Delaware’s prominence and ultimately harm those that benefit from the prestige and lucre that come with it. To avoid this, Delaware courts strategically adjust doctrines to appear vigilant in protecting investors. Delaware’s adjudication of director oversight failures aligns with this account. In re Caremark, the seminal case renowned for its declaration of a proactive board-level …

Disability-Related Misconduct And The Untapped Potential Of The Disparate Impact Theory, Kelly Cahill Timmons

Cardozo Law Review

Disabilities often manifest themselves in behavior that could be characterized as misconduct. Since the early days of the Americans with Disabilities Act (ADA), courts have struggled with how to treat disability-related misconduct in the workplace. In Raytheon Co. v. Hernandez, the Supreme Court indicated that terminating an employee for violating a neutral, generally applicable conduct rule is not disparate treatment because of disability. Instead, the Court suggested that concern about the effect of such a rule on a disabled employee should be addressed under the disparate impact theory of discrimination. In the years that followed, Congress enacted the ADA Amendments …

Will Systematic Stewardship Save The Planet?, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

The largest institutional investors have solidified their status as “universal owners,” holding almost eighty percent of the U.S. stock market. The growing influence of these investors over the companies they invest in has sparked optimism among scholars and activists that asset managers will use their clout to steer firms towards Environmental, Social, and Governance (ESG) objectives. But such optimism may be misplaced. Focusing on carbon emission reduction, we argue that universal owners lack the necessary incentives and competence to pressure corporations to lower emissions.

Universal owners market ESG investments with conflicting promises of “doing well while doing good.” The untenable …

Private Equity’S Viable Path To College Athletics Investment: Potential Entity Mechanisms And Antitrust Considerations, Michael Llg

Vanderbilt Journal of Entertainment & Technology Law

The recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing …

A Speaker-Based Approach To Content Moderation: The Case Of Livestreaming, Maayan Perel

Vanderbilt Journal of Entertainment & Technology Law

Livestreams on social media represent a unique form of User-Generated Content. Delivering events and experiences in real time, while turning passive listeners into an involved audience, livestreaming facilitates users’ engagement and participation. Streaming promotes freedom of expression and facilitates diversity and pluralism in news reporting. It further allows users to maintain truth and authenticity in a potentially fabricated realm of Generative Artificial Intelligence (AI). Speakers are eager to capitalize on the instantaneous nature of livestreaming; some are using it to document newsworthy events or promote business interests, and others exploiting it by spreading unlawful and malicious content in pursuit of …

Agentizing Privacy Preferences Without Privatizing Data Protection Policy, Frank Pasquale, Vanna Carter

Cornell Law Faculty Publications

This essay explores how consumers might exercise newly restored agency in a digital environment increasingly shaped by generative AI. Rather than expecting consumers to read privacy-related terms of service, policymakers should encourage the emergence of Automated Consumer Agents (“ACAs”) capable of interpreting privacy provisions and acting on behalf of users according to their stated preferences. These systems could automatically reject objectionable forms of data extraction, translating consumer values into actionable decisions in online transactions.

Despite this promise, the rise of ACAs would also present new problems. Without supportive policy and legal frameworks, agentization of privacy preferences could itself reproduce or …

Tort Immunity Waiver For Vaccine Injuries: Ethical And Legal Perspectives, Tammy W. Cowart, Gregory L. Bock

Accounting, Finance, Information Systems, and Business-Law Faculty Publications and Presentations

The COVID pandemic highlighted the importance of vaccine development and availability worldwide. Operation Warp-Speed in the United States accelerated vaccine production by several major pharmaceutical manufacturers, averting some of the normal administrative processes. The result has been a financial windfall for those companies. Some recent data has shown that the COVID vaccine can cause negative side effects in some patients. There are provisions in U.S. law that allow victims of vaccine injuries to recover compensation through the court system. However, even then tort remedies are limited by federal law. Since the review process was rushed during the pandemic, should tort …

Not Born A Democracy: Constitutional Preconditions, Martha Minow

William & Mary Law Review

Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental conundrum. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system, at least for now, stands in the way of actions to strengthen or build those preconditions. This Article focuses on three essential predicates for constitutional democracy that face jeopardy: education, reliable news, and security against lethal violence. As basic as these elements may be, repeated efforts to secure a federal constitutional right to education have failed in the courts. Because of a confluence of legal, technological, and …

Seeing Is Believing: Identifying The “Ideal Manifestation Of Hidden Disability” In Ontario’S And Quebec’S Social Benefits Tribunals, Pascale Malenfant

Dalhousie Law Journal

The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities. This paper explores the intersection of such skepticism with the social benefits adjudication processes in Ontario and Quebec. In drawing parallels to feminist critiques of the “ideal victim” in sexual assault cases, it argues that the tribunals’ biased framework for believability is based on a claimant’s conformity to stereotypical expectations of what an “ideal” claimant with a hidden disability looks like. By comparatively examining 10 years worth of Ontario and Quebec tribunal …

Curricular Choices: Misconceptions Regarding Law School Courses, Constance Backhouse, Holland Stille, Avery Esford

Dalhousie Law Journal

Canadian law schools offer their upper-year students a wealth of optional curricular choices. Yet many students choose narrowly and poorly. This article addresses the misconceptions that many hold as they select their second- and third-year courses. Often students believe they need certain courses to get a job, to prepare for articling, to pass the bar exams, or to prepare for future legal careers. In most cases, these concerns are erroneous. This article urges students to choose based on factual evidence rather than imagined anxieties and on personal interest rather than the “group think” rigidity that infects much of the curricular …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

William & Mary Journal of Race, Gender, and Social Justice

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

The Demonization Of America's Economic Engine, Ediberto Roman

William & Mary Journal of Race, Gender, and Social Justice

In a 2013 book entitled Those Damned Immigrants: America’s Hysteria Over Undocumented Immigration, I warned of a conservative political trend that I believed would lead to an all-out assault on undocumented immigrants. This trend occurred despite the fact that these immigrants are critical economic boons to our economy.

On his first day in office in 2025, President Trump made the book’s warnings prophetic. That day, President Trump issued a series of executive orders, including 10 focused on limiting entry into the United States and questioning many who previously entered the United States legally. These orders include, 1) enhanced deportation …

Getting There From Here: Reflecting On Compassionate Migration Policy, Steven W. Bender

William & Mary Journal of Race, Gender, and Social Justice

Having written about Latinx issues for more than three decades, with a focus on immigration policy for at least the last two decades, I see no middle ground in this time of Trump. Those who relish hurt and hate, and those scholars who wrote the kindling for that bonfire, must be basking in the glow of their handiwork. Those of us who I claim are on the right side of history must search through the ashes for hope—the where, when, and how to nurture humanity on scorched ground. Counting myself among those searching for hope, I acknowledge the indulgence offered …

Countering The Criminalization Of Solidarity: An Analysis Of Legal Frameworks Proposed To Protect Humanitarian Aid For Migrants And Asylum Seekers, Katherine E. Smart

William & Mary Journal of Race, Gender, and Social Justice

Thousands of migrant fatalities are reported each year all across the globe, and as staggering as current numbers are, they are likely an undercount. These deaths are a direct result of government policies that funnel migrants into dangerous routes through deserts and seas to deter immigration. Further, when individuals and groups step forward to provide immediate aid to migrants—such as food, water, shelter, first aid, and search and rescue (SAR)—they are often targeted by intimidation, harassment, discipline, and even criminal prosecution. Thus emerges a question: what legal framework can protect the rights of humanitarian aid workers acting in solidarity with …

"America's Paradise": The Enduring Costs Of Imperialism And Colonial Rule--A Case Study Of The U.S. Virgin Islands, Diamond C. Ash

William & Mary Journal of Race, Gender, and Social Justice

As the United States prepared to enter World War I, it secured another strategic territorial holding in the Caribbean. Six days before declaring war on Germany, the United States purchased the Virgin Islands (USVI) from Denmark—not for economic development or the welfare of its people, but as a military asset. St. Thomas, St. Croix, and St. John became a strategic outpost for naval dominance and national security.

Like other unincorporated U.S. territories, the USVI’s governance was shaped by imperial ambitions and reinforced through legal structures that preserved federal dominance. In practice, this created a system of colonial rule in which …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Extended Detention Without Due Process: Resolving A Circuit Split In Favor Of Detained Noncitizen Migrants’ Due Process Rights, Jacob E. Maguire

Dickinson Law Review (2017-Present)

Less than two months before American voters cast their ballots in the 2024 presidential election, a circuit split emerged regarding whether the Due Process Clause allows noncitizens with certain criminal convictions to be held indefinitely throughout their deportation proceedings without the right to a bond hearing. Specifically, the First, Second, and Third Circuits disagree with the Eighth Circuit over whether noncitizens may be detained for the duration of their deportation proceedings under Section 236(c) of the Immigration and Nationality Act (INA) without the right to a bond hearing. In January 2025, Congress subjected additional classes of noncitizens, including those who …

Contracting For Consumer Trade Compliance, Christine Abely

Dickinson Law Review (2017-Present)

Export compliance is becoming increasingly important for parties required to abide by U.S. law, including many online sellers of consumer products. These retailers’ contractual terms with their customers set forth a number of provisions governing the relationship between them, including those which deal with arbitration, indemnification, disclaimer of warranties, and other issues. Many such agreements also purport to create obligations on the part of the consumer as to export control and sanctions compliance relative to the products they purchase. These contract provisions attempt to do so, however, in often markedly different ways, and with language that may leave notable gaps …