2488 research outputs found
Sort by
Mahmoud v. Taylor: Cause or Effect of Disruptions in the Public Schools?
No full textMahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder and is driven by an assertion that the parents’ religious beliefs would be undermined by the readings.
Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against normalization of life for LGBTQ people.
Part II addresses the substance of Mahmoud. In proclaiming a right of parents to liberate their children from any exposure to ideas that may subvert the parents’ religious beliefs, the Court invites curricular challenges and opt-out claims across a broad range of subjects, not just sex and gender. Moreover, despite the relative youth of the children involved in Mahmoud, the principles of parental empowerment that it announces cannot be confined by the age of the students. Mahmoud will affect the entire curriculum in grades K–12. It may also, perhaps counterintuitively, buttress some claims that once were considered the province of the Establishment Clause.
Part III explores ways that Mahmoud creates pressure on school districts to design and implement protocols for parents to opt their children out of objectionable readings. The principal vehicles for analysis are a new, post-decision regulation in Montgomery County on “Curriculum Transparency and Requests to be Excused from Instruction,” and data drawn from its implementation in the first half of the 2025-26 academic year. These policies will disrupt the process of public education and in some cases may alter its content considerably. In the wake of Mahmoud, education for life in a pluralistic democracy will suffer
Counter-Claims at the International Court of Justice (2025)
No full textThis essay updates and analyzes the practice of counter-claims before the International Court of Justice (ICJ), as well as its predecessor, the Permanent Court of International Justice (PCIJ). In the Court’s jurisprudence, a “counter-claim” is an autonomous legal act by the respondent in a contentious case before the Court, the object of which is to submit a new claim to the Court, one that is linked to the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to be included as part of an existing case is not because it assists in disposition of the principal claim but, rather, to assist in the disposition of two autonomous claims. The counter-claim is allowed to become a part of an existing case in order to ensure better administration of justice, given the specific nature of the claims in question and to achieve a procedural economy while enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently.
The ICJ Statute does not directly address the issue of the respondent filing a counter- claim against the applicant. Article 80 of the Rules of the Court, however, provides that the Court may entertain such a counter-claim provided two requirements are met: the counter-claim falls within the jurisdiction of the Court; and it is directly connected with the subject matter of the principal claim. The Court’s case law has developed the contours of such requirements, as well as the procedures used in filing and assessing them. While counter-claims featured somewhat during the time of the PCIJ, and in the early life of the present Court (in 1950–1952), use of them disappeared for several decades, only re-emerging in several cases after 1997, most recently in Silala Waters (Chile v. Bolivia). Renewed interest in the filing of counter-claims may be due to a desire by respondents to present to the Court with a more balanced perspective of the conduct of the two States before it, since inclusion of a counter-claim may force both the Court and the other party to confront certain facts and legal arguments that otherwise would not feature in the case. At the same time, some States are opting instead to file a “parallel” case against a first-mover State, even in situations where those States could probably have filed counter-claims
Sharing the Algorithm: The Tax Solution to Generative AI
No full textThis article argues that tax policy offers a core tool for mitigating the sweeping public policy challenges of generative Artificial Intelligence ( AI ). Specifically, we propose a tax that would allow the public to own a share of AI itself, not just through future income tax liabilities or new excise taxes, but a proposed ownership structure that requires a one-time tax payment by generative AI firms in the form of equity.
Fractional public ownership of AI would directly address four of the key harms of AI that have been well-documented in a deep and still expanding literature. First, many types of AI were built through the unauthorized use of millions of copyrighted works, allegedly amounting to copyright infringement on an unprecedented scale. Sharing ownership of AI would compensate injured creators alongside the broader public whose data was nonconsensually harvested. Second, AI is expected to pose massive labor market disruptions, but shared ownership would allow displaced workers to benefit from the profits of the technology substituting for their labor. Third, greater public voice in the corporate governance of AI could lead to greater scrutiny and bolder interventions in the ways AI has been shown to reproduce and compound many existing forms of discrimination. And lastly, sharing the ownership of AI through government’s principal tool for redistribution, taxation, directly addresses the rapid wealth concentration and monopolization already underway with AI developers. This proposal can also work in tandem with targeted regulation of AI and private law remedies to AI’s many harms.
Ultimately, the original contribution of this paper is to propose a unique in-kind tax payment structure that would require firms with ownership of AI to remit equity shares to the public. The article describes multiple structures for this arrangement, drawing from existing models of fractional ownership used in private investment to serve as a paradigm for a partial public interest in AI. In total, this article argues that many of the greatest concerns related to AI can be solved through sharing AI. And tax policy is the best tool to achieve this goal
Analyzing the Benefits of Artificial Intelligence to Racially Inclusive Democracy
Full text linkOver the past two decades—as the United States has grown more ethnically diverse—the U.S. Supreme Court has dismantled key voting rights protections, and state legislatures have erected a record number of voting restrictions. Largely oblivious to this growing gap in legal protections, several artificial intelligence (“AI”) optimists have claimed that AI can help usher in a more inclusive, participatory, and unbiased democracy. Such an outcome, however, is far from guaranteed. This Article is the first to comprehensively examine the extent to which AI—and the legal frameworks that regulate it—can advance racially inclusive democracy. It responds to the AI optimism literature by offering a clear-eyed assessment of relevant political, racial, and economic barriers to AI making democracy more racially inclusive. This analysis reveals that some of the AI optimists’ technological and legal proposals could, in fact, exacerbate racial disparities in political power and harm voters of color. The Article acknowledges, however, that certain AI tools, if applied appropriately, could help reduce turnout gaps and increase government responsiveness to communities of color. Although good AI law is no substitute for an updated Voting Rights Act and a Supreme Court committed to protecting voting rights, embedding values of racial inclusion into AI law at this formative stage could shape the trajectory of our democracy. For example, laws ensuring broad access to public AI infrastructure (particularly in historically marginalized communities) and robust AI accountability laws can foster conditions in which AI is more likely to be used to benefit racially inclusive democracy
Circuit Capture and the National Court of Appeals
Full text linkWe are facing a crisis of confidence in our federal courts. Polarization in the judicial selection process and partisanship in judicial decision-making have yielded a steep decline in the public’s trust of the judicial branch. Much of the blame lies with the Supreme Court, whose repeated ethical scandals and aggressive rightward tilt have renewed calls for major court reform—from court packing to jurisdiction stripping, from term limits to lottery dockets, and much more in between. But the Supreme Court is not the only court in need of reform. The vast majority of cases go no further than the thirteen U.S. Courts of Appeals, which increasingly suffer from the same polarization and politicization problems without the same level of scrutiny.
Regional organization is an arbitrary product of history. Perhaps it made sense when the Nation’s first circuit courts were staffed by Supreme Court justices, who had to contend with the realities of early 19th-century travel. But as the country expanded and the circuit courts evolved from trial courts into the powerful, law-making U.S. Courts of Appeals, that structure has long since outgrown its initial justification and is now being exploited for political gain. There’s no better example than the current Fifth Circuit—an ultra-conservative court stacked with appointees by Donald Trump hand-picked for their conservative bona fides and constantly in the headlines for its sweeping, politically-charged decisions.
This problem—one of circuit capture by partisan judges—is structural, and a structural problem requires a structural solution: the dissolution of the regional circuits. The idea of a single, unified National Court of Appeals is not new. Several commissions and judicial administration scholars have unsuccessfully proposed it in one form or another to combat increasing caseloads. But the problems the courts face today is not one of caseloads, it is one of legitimacy. And taking aim at the margins and working within the bounds of the current structure will not solve it. This Article argues that a single, centralized intermediate federal appellate court would alleviate the partisan problems generated by captured circuits, promote uniformity of federal law, and streamline the appellate process
Prohibiting Threats of Aggression
No full textRecent events, particularly Russia’s invasion of Ukraine, have revived worries about the international regime regulating the use of force. Vastly less attention has been paid to what often precedes such attacks—threats to use force—and the prohibition on them. While the UN Charter and other legal instruments integrate the threats regime with the regime on actual uses of force, the two regimes are increasingly decoupled, in part because only one considers gradations: the use-of-force regime now identifies more serious variants like aggression and crimes of aggression; threats rules, by contrast, do not. This decoupling reflects real differences in the underlying wrongs, but it is also due to bureaucratic history and path dependence, including reluctance to criminalize threats of aggression while the underlying concept of aggression was still being developed.
As a result, international law and its institutions fail clearly to treat more serious threats, like threats to annex another state’s territory, as graver state conduct—putting aside, that is, whether criminalization is appropriate. This artificially limits the toolkit for addressing incipient aggression of the kind patently evident before Russia’s invasion of Ukraine. It has also impoverished consideration of potential aggression, such as may become inferable from U.S. policy concerning the Panama Canal and Greenland, before positions harden and avoidable consequences come to pass.
This Article proposes clearly defining and recognizing threats of aggression as prohibited state conduct. It evaluates the potential for deterring wrongdoing and proposes concrete and novel ways that institutions could develop and employ the rule. Such an initiative might discourage the most bellicose threats by states and even acts of aggression themselves
Overcoming Racial Harms to Democracy from Artificial Intelligence
Full text linkWhile the United States is becoming more racially diverse, generative artificial intelligence and related technologies threaten to undermine truly representative democracy. Left unchecked, AI will exacerbate already substantial existing challenges, such as racial polarization, cultural anxiety, antidemocratic attitudes, racial vote dilution, and voter suppression. Synthetic video and audio (“deepfakes”) receive the bulk of popular attention—but are just the tip of the iceberg. Microtargeting of racially tailored disinformation, racial bias in automated election administration, discriminatory voting restrictions, racially targeted cyberattacks, and AI-powered surveillance that chills racial justice claims are just a few examples of how AI is threatening democracy. Unfortunately, existing laws—including the Voting Rights Act—are unlikely to address the challenges. These problems, however, are not insurmountable if policymakers, activists, and technology companies act now. This Article asserts that AI should be regulated to facilitate a racially inclusive democracy, proposes novel principles that provide a framework to regulate AI, and offers specific policy interventions to illustrate the implementation of the principles. Even though race is the most significant demographic factor that shapes voting patterns in the United States, this is the first article to comprehensively identify the racial harms to democracy posed by AI and offer a way forward
Running Government Like a Small Business: Cut Waste, Crush Fraud, Hearing Before the United States Senate Committee on Small Business and Entrepreneurship
No full textThis testimony analyzes the 2025 Small Business Administration audit of the 8(a) Program within the broader federal procurement integrity framework, emphasizing that oversight is delivered through multiple, overlapping institutions and tools rather than a single, fraud-enforcement process. It explains how independent Inspectors General, GAO, DOJ enforcement, bid protests and eligibility challenges, and disclosure and whistleblower mechanisms operate in parallel, each with distinct evidentiary thresholds, procedural protections, and remedies. It notes that oversight discourse frequently blurs critical distinctions among fraud, improper payments, ineligibility, documentation deficiencies, waste, abuse, and mismanagement. Those categories are not interchangeable: “fraud” is a legal conclusion that typically requires adjudicative determination, while many integrity problems reflect non-fraud control failures, administrative error, or weak monitoring. The testimony also places these classification problems in a broader environment of weakened oversight capacity and contested independence for key watchdog institutions. It notes the practical compliance constraints facing small businesses, warning that rapid, standardized documentation demands can end up measuring administrative capacity as much as misconduct. It closes by urging Congress to focus on implementing outstanding GAO recommendations on certification controls and monitoring and to require transparent classification standards before using audit outputs to support sweeping fraud claims
One Union Soldier\u27s Service with the 141st Regiment of Pennsylvania Volunteers and That Regiment\u27s Remarkable Record of Heroism and Sacrifice during the Civil War
No full textChristopher C. Wilmarth (my great-great-uncle) served with the 141st Regiment of Pennsylvania Volunteers from August 1862 until June 1863. On May 3, 1863, Christopher was wounded in his leg during the third day of the Battle of Chancellorsville. He was left on the battlefield when the Union army retreated, and he was captured by the Confederates. He remained a Confederate prisoner for at least ten days, and he suffered from exposure to the elements and a lack of adequate medical care until he was returned to the Union army. After multiple amputations, Christopher died in a Union army hospital on June 9, 1863.
This study describes Christopher’s military service with the 141st Regiment and provides an overview of that Regiment’s remarkable record of courage and perseverance during the Civil War. This study provides detailed descriptions of the 141st Regiment’s participation in the Battles of Fredericksburg, Chancellorsville, and Gettysburg. On the third day of the Battle of Chancellorsville and the second day of the Battle of Gettysburg, the Regiment made heroic defensive stands, conducted disciplined fighting withdrawals, and suffered very heavy casualties.
Despite its devastating losses at Chancellorsville and Gettysburg, the 141st Regiment continued to serve with great distinction in the Army of the Potomac’s campaigns through the end of the Civil War. Of the 1,040 soldiers who enlisted in the Regiment, only one-third were still serving on May 28, 1865, when the Regiment was mustered out of service. The other two-thirds were killed in battle, died from wounds or diseases, or were discharged for disabilities caused by wounds or illnesses. Among all Union regiments, the 141st Regiment had the tenth highest percentage of soldiers (16.1%) who were killed or died from wounds during the war. This study salutes and honors the courage and devotion of Christopher C. Wilmarth and his Regimental comrades
Zoning Report: Virginia
No full textVirginia is rapidly growing and transforming. Its population, now near nine million, is concentrated in Greater Richmond, Hampton Roads, and the urbanized crescent of Northern Virginia. While population growth has been strong, housing construction has struggled to keep pace. With the state facing a shortage of multi-family homes, housing costs continue to outpace incomes. That means too many Virginians are paying too much for their housing.
A significant factor in the cost of housing in Virginia is zoning: the local regulation of land uses, lots, and structures. This report analyzes National Zoning Atlas data on statewide zoning conditions. Part I begins this report by exploring housing challenges in Virginia and providing an overview of zoning’s influence on them. Part II of this report describes NZA’s methodology for analyzing and digitizing zoning codes, highlighting land-use issues unique to Virginia.
As Part III details, NZA analysis reveals five key statewide findings about zoning conditions across Virginia. First, most Virginia jurisdictions have zoning ordinances in place. Second land is predominately zoned for single-family housing. Third, minimum lot size requirements are widespread and often large. Fourth, one-third of single-family land bans accessory dwelling units. Fifth, parking mandates exist on 93% of residential land.
This report also covers zoning conditions in different parts of Virginia. Part IV examines Northern Virginia, a rapidly growing and economically significant region that forms part of the Washington, D.C. metropolitan area. Part V examines zoning conditions within and between five metropolitan regions: Greater Charlottesville, Lynchburg, Richmond, Roanoke, and Virginia Beach.
Part VI concludes the report with a set of actionable recommendations to support reforms to Virginia’s zoning framework, promote more accessible and affordable housing, and build communities that better reflect the needs and preferences of today’s residents