Beyond the Ivy League: Stopping the Spread of Antisemitism on American Campuses: Hearing Before the H. Comm. on Educ. & the Workforce, 119th Cong., May 7, 2025 (Statement of David D. Cole)

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of Jewish or Israeli identity. But antisemitic speech is not necessarily discrimination. Individually targeted harassment can constitute discrimination. But where speech is not targeted at an individual, it constitutes discrimination only if it is so “severe, pervasive, and objectively offensive” that it denies students equal access to education. Those are very high bars. Most speech criticizing Israel or supporting the Palestinians at a campus protest will not meet either bar, and to that extent federal antidiscrimination law has nothing to say about it. And even if student speech does constitute discrimination, the university is only responsible if it is “deliberately indifferent” to that discrimination. If it has a complaint procedure, considers, investigates, and adjudicates credible complaints, and imposes some sanction where it finds that the facts support the complaint and rise to the level of discrimination, it is not “deliberately indifferent.” Thus, to determine whether a school has actually violated Title VI, it is not enough to accept complaints as true. It requires careful assessment of the facts, often in a hearing in which competing accounts can be considered and the truth can be ascertained. The hearings conducted by the House Committee on Education and the Workforce have not been a serious or even a good faith effort to ascertain facts and apply the legal standards. They have instead been more akin to the McCarthy era hearings of the House Committee on UnAmerican Activities. That approach does nothing to solve the problem, and risks chilling speech and interfering with academic freedom

The US-Ukraine Strategic Minerals Partnership in the Wake of Russia’s War of Aggression

Russia’s full-scale invasion of Ukraine has prompted not only military and diplomatic responses, but also novel forms of international agreements centered on co-investment in resources and infrastructure. This essay examines the “minerals deal” between Ukraine and the United States. The agreement establishes a joint venture for investment in mining, hydrocarbons, and infrastructure in Ukraine. Although the key details are set forth in a Limited Partnership Agreement (LP Agreement) that remains undisclosed, insights can be drawn from the publicly available Agreement on the Establishment of a United States–Ukraine Reconstruction and Investment Fund (UURIF), official statements, a leaked draft of the LP Agreement, and interviews. This essay analyzes the deal’s implications for both Ukraine and the United States, as well as for broader questions of international law and global economic governance. It argues that the arrangement marks a shift toward a more transactional model for U.S. assistance where the United States requires the opportunity by contract to obtain stakes in a country’s resources in exchange for U.S. aid, military support, and financing. The essay highlights transparency issues, as neither the United States nor Ukraine have made public the LP Agreement

The Scope of the Prior Art

The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating. The government also holds patent proprietors accountable for information it deliberately withholds from the public. The USPTO maintains pending patent applications—including information on climate change mitigation, public safety, life-saving medications, and other inventions of extraordinary social significance—in confidence for at least eighteen months and possibly far longer. Collectively, the agency withholds patent applications from the public for a duration of over one million years, each and every year. Yet this body of information, held in secrecy at a time when its disclosure would prove of greatest value, qualifies as prior art as of its fling date. Patent law’s prior art definition poorly serves innovation policy. It extends inefficient patent races, and it adds to the persistent concern that USPTO examiners fail to identify the most relevant prior art when deciding whether to approve a patent or not. Worse yet, judicial invalidation of issued patents hinges upon a story in which innovative firms should have taken existing knowledge into account before engaging in their own research and development efforts. Proprietors of invalidated patents are deemed to have acted inefficiently and endeavored to pilfer the public domain by obtaining propriety rights in old inventions. This account simply does not hold where only the most exhaustive, financially unconstrained search could unearth secluded activities in distant lands, where members of the public could not discern secret prior art maintained by the USPTO under any legitimate circumstances, and where the USPTO has no realistic way to research the full scope of the prior art

Digital Regulation and Development: A Global Micro and Macro Comparison

Regulation of the digital economy is receiving increased attention both domestically and internationally, but too little scholarship exists assessing the degree to which these new rules effectively support economic, social, and sustainable development. This Article advances a micro-macro framework for assessing digital regulation and its development dimension, including digital inclusion and measures to address the digital divide, the protection of human rights, and the operationalization of the United Nations’ Sustainable Development Goals. In doing so, it incorporates a “micro international law” methodology to compare domestic legal design features and trace their diffusion into regional trade agreements and, in turn, into soft law and multilateral instruments. Domestic law has been an important driver of legal change in areas like data privacy, human rights, digital infrastructure, and access to finance. In many cases, domestic law has influenced rules at a regional level, highlighting how micro approaches can flow upward to influence more macro-level rules. Trade agreements increasingly integrate new approaches in development-focused digital regulation as well, including the recent trend to include provisions on digital inclusion, such as those that appear in the Digital Economy Partnership Agreement, the New Zealand-United Kingdom Free Trade Agreement, and Digital Trade Protocol to the African Continental Free Trade Area Agreement, among other instruments. Across these emerging trends, some promising variation in bottom-up legal diffusion is apparent, suggesting that legal innovations may stem from a range of national sources. However, both domestic law and trade agreements contain notable gaps in linking digital rules to social and sustainable development. These include insufficient data privacy protection, incomplete approaches to artificial intelligence, and piecemeal focus on digital infrastructure and the digital divide. Sustainability in the digital realm is an even more amorphous concept, and current national and regional rules largely overlook both environmental and social gains and losses resulting from increased digital activity. This Article explores domestic, regional, and international digital rules in the context of economic, social, and sustainable development, highlighting innovations in domestic law and trade agreements, along with alternative “micro” interventions, for future study and scaling

Law Librarians as Content Preservers and Mediators for Modern Legal Researchers

Even though libraries have existed for thousands of years, one must wonder what role law libraries play and, more importantly, what roles law librarians play in supporting students, faculty, lawyers, and judges with so much information now available online? What value do law librarians add for today’s legal researchers? At their core, law librarians continue to strive to perform two major functions: (1) “select, organize, and preserve legal information” and (2) help lawyers, judges, students, and faculty locate and use that information. This article hopes to explain just why it is important that law librarians continue to serve in these roles and how they are serving these roles for students, faculty, lawyers, and judges

The Moving Pieces of Corporate Disclosure: Truth, Falsity, and Half-truths in Between

The half-truth doctrine is made operational in the common statutory and rule-based admonitions in the securities laws (particularly Rule 10b-5) not to omit “material fact[s] necessary in order to make . . . statements made . . . not misleading . . . .” It cabins the temptation to exploit the privilege of nondisclosure through what has been called “artful paltering.” Unfortunately, the evolution of the half-truth doctrine has become more of a poor stepsister than a muscular companion. It carries less than a full load in the complex ecosystem that exists for public company disclosure today. And it is woefully undertheorized and widely misunderstood. To this end, this article traces duty as it has developed so haphazardly in the Supreme Court, showing how the Court may have missed opportunities to do better. Our attention will mainly be devoted to a recent 2024 case (Macquarie), which is bookended by the Court’s initial effort to describe the doctrine as it applies to statements of opinion (Omnicare) and its ill-fated effort to address the temporal dynamics of risk disclosure (Facebook)

Pave Outer Space and Put Up A Parking Lot: Lagrange Points Should Be the Common Heritage of Mankind

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime. This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford unique advantages for human-made space objects to loiter indefinitely with minimal expenditure of propulsive energy. Lagrange points constitute a scarce resource that is just beginning to be occupied; existing international law is inadequate for optimal governance of their future occupation and use. This article proposes that the Lagrange points should be regarded as “the common heritage of mankind.” That structure has been applied—with intense controversy—in other domains, even though it remains imprecisely defined. The article offers a more comprehensive understanding of the concept, a portrait of how it could be applied to Lagrange points, and an argument in favor of that resolution

Pozen and the Puzzle of Counterfactuals

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular

The National Security Internet

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—a concept previously unexplored in legal scholarship. AI systems, too, now need licenses for export. We are witnessing the creation of Digital Berlin Walls, complete with Checkpoint Charlies to permit border crossings. The ascent of digital border controls in the name of national security treats a domain of speech and commerce according to the rules of war. This Article traces this turn through six case studies: TikTok, the U.S. “rip and replace” program, the Chinese “Delete America” program, Microsoft 365, connected cars, and AI models. The TikTok saga is but the visible edge of a broad reconfiguration of international economic relations largely occurring through obscure administrative processes. Existing scholarship has recognized various aspects of this national security turn; this article weaves together regulatory moves from TikTok to cars, from China to the United States, to identify a paradigm shift in digital regulation. The Article argues that the national security internet will come at a steep price, disrupting trade and investment, reducing competition, inviting retaliation, increasing government control over speech, and undermining efforts to stem climate change and promote development, while offering easily circumvented protection against foreign surveillance. The Article offers a typology of corporate strategies to satisfy national security demands and assesses their shortcomings. The Article proposes reforms that constrain foreign surveillance in order to protect both civil rights and national security

What is \u3ci\u3eTrump\u3c/i\u3e Immunity?

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly imposed legal obligations? Or is it an immunity from being subjected to the jurisdiction of judicial tribunals in suits seeking to impose validly prescribed legal sanctions? The implications of the Trump decision vary dramatically depending on the type of immunity the Court recognized. If the immunity is from the substantive operation of the law, then the impugned presidential conduct is not illegal. The President would be exempt not only from criminal prosecution but also from civil damages and even prospective relief. Subordinates carrying out the President’s orders within the scope of the immunity would similarly be exempt from these forms of relief. And, depending on the basis for finding the President’s conduct to be legal, the President’s conduct might not constitute “high crimes” or “Misdemeanors,” and accordingly the President would not be impeachable for performing or ordering such acts. If the immunity is merely from criminal sanctions, on the other hand, the impugned conduct might well be illegal, and, if it is, the President would be subject to noncriminal sanctions and her subordinates even to criminal sanctions. The Court’s opinion leaves unclear the nature of the immunity the President enjoys. Justice Barrett’s concurring opinion, which she regarded as consistent with Chief Justice Roberts’s majority opinion on this point, appears to understand Trump immunity as an immunity from primary obligations. Chief Justice Roberts’s opinion analyzes separately the President’s immunity with respect to conduct for which the President’s authority is “conclusive and preclusive” and the President’s immunity with respect to conduct that may be regulated by Congress. An immunity for conduct that is within the President’s “conclusive and preclusive” authority would appear to be an immunity from the substantive operation of a congressionally imposed criminal prohibition. An immunity for presidential conduct that Congress has the power to regulate could be an immunity from criminal sanctions for violation of validly imposed obligations, but the Roberts opinion at times suggests that the President’s immunity with respect to conduct in this category is an immunity from the operation of generally applicable criminal prohibitions