Digital Commons Network^™

Trademark Confusion After The Algorithmic Turn, Daryl Lim

SMU Law Review

Trademark confusion doctrine rests on an implicit theory of consumer perception. Courts infer confusion through proxies such as similarity, market proximity, intent, and evidence of actual confusion, presuming that consumers encounter trademarks in stable, human-designed environments. That premise no longer holds uniformly across contemporary markets. Today, consumers increasingly encounter trademarks through algorithmic systems that rank, cluster, recommend, and generate content on their behalf.

This Article argues that trademark law’s likelihood of confusion doctrine has not yet reckoned with this transformation. In algorithmically mediated markets, confusion often arises without copying, deception, or misleading conduct by traders. Instead, it often arises from …

Preserving Gender Norms Through Harm-Based Reasoning: The Best Interest Of The Child Standard And Transgender Parents, Ariël Decoster

SMU Law Review

Contemporary custody law purports to have moved beyond dominant gendered understandings of parental roles and family life by resolving disputes under the ostensibly neutral “best interest of the child” (BIC) standard rather than through the explicitly gendered rules that once governed custody adjudication. This Article examines custody disputes involving transgender parents to reveal a structural feature of custody adjudication under the BIC standard, namely the continued reproduction of dominant gender norms under the guise of a neutral legal standard.

Analyzing transgender custody cases alongside scholarship documenting how the BIC standard’s indeterminacy has enabled bias against other marginalized parents, the Article …

The Shifting Economics Of Influencer Sponsorship Disclosures, Uri Y. Hacohen

Cardozo Arts & Entertainment Law Journal

Conventional wisdom holds that disclosing influencer sponsorship diminishes advertising's effectiveness by triggering consumer skepticism. Responding to this perceived transparency gap, regulators have adopted mandatory disclosure regimes to address a perceived market failure: the divergence between private commercial incentives and the public interest in transparency. This Article challenges that assumption. Drawing on a large-scale social media experiment (N=600), it demonstrates that disclosures not only increase consumers' recognition of advertising but also improve their attitudes toward both influencers and brands, while significantly boosting their willingness to share promotional content. These empirical results are further supported by a comprehensive synthesis of the emerging …

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Power Play: The Battle For Copyright Control In Emulation, Ryan Borja

Cardozo Arts & Entertainment Law Journal

The note argues that the current legal framework prioritizes commercial interests and developer rights over the preservation of older video games. To reconcile the tension between copyright protection and the public interest in cultural preservation, the analysis proposes legislative solutions such as compulsory licensing schemes or the creation of a dedicated federal preservation agency.

Some Respect Reserved? Survey Experiment Insights On The Perception Of Creative Commons And Copyright Infringement, Thomas H. Rousse

Cardozo Arts & Entertainment Law Journal

Since its inception, Creative Commons has introduced new ways for creators to grant licenses to the public without cost or the need for negotiation by breaking up rights provided by copyright and making a subset of those rights available to anyone willing to abide by the conditions of the license. Its widespread adoption has democratized open licensing for creators beyond the software context these licenses originated within. Although the success of Creative Commons as a community is plain, relatively little information is available about its perception by the general public. Aggressive litigation by Creative Commons licensors has put the organization …

Private Canvas, Government Expression: Protest Art & The Government Speech Doctrine, Melanie P. Rigden

Cardozo Arts & Entertainment Law Journal

The note argues that protest art is fundamentally incompatible with the government speech doctrine and should not be subject to its principles. It contends that applying this doctrine to political expression allows the government to suppress dissenting viewpoints and engage in censorship under the pretext of exercising its own speech rights.

The Devil Is In The Det[Ai]Ls: Ai Agents, Ghost Students, And The Crisis Of Verified Presence In An Agentic Ai World, Aras Bozkurt, Helen Crompton, Caroline Fell Kurban

STEMPS Faculty Publications

The transition from reactive Generative Artificial Intelligence (GenAI) to agentic AI systems marks a categorical shift in digital education, moving beyond simple content generation to goal-oriented, autonomous execution. This paper explores the emergence of the “ghost student”: a digital surrogate created by the coupling of Large Language Models (the “mind”) and agentic AI browsers (the “body”). These entities are capable of navigating Learning Management Systems (LMS), engaging with content, and completing assessments with human-like mimicry, often rendering the actual learner’s presence optional. We argue that this phenomenon creates a verification gap that traditional proctoring and detection tools are structurally unable …

Governing Generative Ai In Higher Education: A Global Delphi Study On Policy And Practice, Helen Crompton, Diane Burke, Christine Nickel, Aras Bozkurt, Fengchun Miao, Mike Sharples, Jeffrey Alan Greene, David Parsons, Lucy Gill-Simmen, Adam Edmett, Mark Pegrum, Inge De Waard, Curtis J. Bonk, Manuel B. Garcia, John H. Curry, Leeann Lindsey, Mohan Yang, Stephen Marshall, Maha Bali, Nellie Deutsch, Suzaan Le Roux, Mourad Benali, Mohd Ali Bin Samsudin, Hasan Tinmaz, Matthew L. Bernacki, Mari Van Wyk, Lenandlar Singh, Agnes Chigona, Lance Eaton, Junhong Xiao, Johanna Velander, Jinhee Kim, Francisco Bellas, R. Rajalakshmi, Andréia De Bem Machado, Agnieszka Palalas, Sean Yu

STEMPS Faculty Publications

As GenAI technologies become more pervasive in higher education (HE), scholars call for guidance on AI governance. To meet this need, a Delphi technique and collective writing was used in gathering expert perspectives from across 22 countries/locations and six continents. This resulted in the development of a HE GenAI policy/guidelines framework with eight core areas: (1) academic integrity, (2) ethical use and responsible use, (3) privacy and protection, (4) equitable access, (5) GenAI literacy, (6) integration strategy, (7) human oversight and accountability, and (8) institutional support and infrastructure. In addition, a six-part framework was developed to ensure that policies remain …

Disaster Risk Management During Climate Emergencies In The Dominican Republic And Puerto Rico, Rosleny Ubinas

Dissertations and Theses

This paper analyzes the DRM approach as an effective framework in addressing climate emergencies across the Dominican Republic and Puerto Rico. These two Caribbean regions, with high hurricane exposure and differing response structures, are deeply shaped by their governments and affiliated international organizations. Disaster Risk Management is the systematic process of using laws, plans, institutions, and community networks to reduce vulnerability to hazards and coordinate effective response when disasters occur. It covers the full cycle, from prevention to reconstruction and rebuilding more resiliently. The Dominican Republic’s law-based intervention led to greater local-level community participation during disasters with its embedded volunteer …

Through A Glass Darkly: Targeting Cyber And Space Infrastructure In The Law Of War, Michael D. Minerva

Chapman Law Review

As modern militaries become more capable in the cyber and space domains, much of the legal debate has focused on how to legally conduct cyber and space operations. While important, that discussion has largely overlooked the legal implications for the rapidly growing cyber and space infrastructure that exists in the physical domain—commercial satellites like Starlink filling the night skies and data centers like those popping up all over northern Virginia. Most of this infrastructure is commercially developed and privately owned—presumptively civilian in nature—and yet used by militaries all over the world.

The same way bridges form critical ground lines of …

Escaping The Labyrinth: Cutting Through The Maze Of Federal Sector Employment Laws To Streamline Appeals, Allow Faster And More Consistent Decisions, And Level The Playing Field Between Agencies And Employees, Christopher Ligatti

Chapman Law Review

Federal employees and their job protections have gained increased media attention due to the current presidential administration. Criticism has long been aimed primarily at the property interest and accompanying due process protections that federal employees have in their employment. However, this Article argues that while the federal sector employment law system is badly in need of reform, the issue is not the constitutionally required due process protections afforded to employees, but rather the additional statutory and regulatory protections Congress has granted employees. Currently, federal employees have multiple overlapping forums in which they can bring employment actions, may cross-appeal negative decisions …

Muted By The Machine: Expanding Ftc Authority To Address Algorithmic Review Suppression, Aubrey Adams

Chapman Law Review

As digital platforms increasingly shape consumer decision-making, the integrity of online reviews has become central to fair market competition. In 2024, the Federal Trade Commission (FTC) issued a final rule prohibiting deceptive practices involving consumer reviews, including traditional forms of review suppression. Yet the rule fails to address a more subtle threat: algorithmic review suppression.

This Note argues that algorithmic review suppression, where platforms use automated systems to downrank or obscure negative reviews, creates a misleading impression of product quality while evading existing regulation. Unlike traditional suppression, these practices operate invisibly under the guise of content curation, distorting consumer perception …

Regulating Space-Based Solar Power: Challenges Under Both Space Law And Energy Law, Anne-Sophie Martin, Steven Freeland

Journal of Air Law and Commerce

Space-based solar power (SBSP) is emerging as a potential catalyst for global decarbonisation, driven by advances in wireless power transmission, in-orbit assembly, and photovoltaic technologies. Programmes such as the European Space Agency’s SOLARIS initiative, China’s planned megawatt-scale demonstrator, and private projects including Constant Aperture Solid State Integrated Orbital Phased Array and Caltech’s Space Solar Power Project illustrate the shift from theoretical models to operationalisation. SBSP offers continuous, weather-independent renewable energy capable of complementing terrestrial solar, wind, and hydro generation, enhancing grid stability, energy security, and progress toward the UN Sustainable Development Goals. It also supports future space activities by providing …

Systemic Legal Scholarship For Systemic Ai, Kevin Frazier

Chapman Law Review

Artificial intelligence (AI) is triggering societal transformation at an unprecedented pace, yet our legal system struggles to keep up, often relying on incremental tweaks to outdated rules. This Article argues that such conventional legal thinking is not just inadequate but also a source of inconsequential scholarship. By failing to anticipate AI’s trajectory and address foundational issues, incrementalism allows “legal tech debt” to mount, increasing risks of policy failure, societal disruption, and erosion of the rule of law. We must leapfrog this dangerous inertia. This Article proposes and defines a necessary alternative: systemic legal scholarship. This forward-looking paradigm requires legal experts …

Audit Guides And The Administrative State, Joshua D. Blank, Leigh Osofsky

Faculty Publications

Scholars are engaged in deep debate about the transformative power of recent Supreme Court cases that appear to limit the role of agencies in making rules of law. In Loper Bright Enterprises v. Raimondo and West Virginia v. EPA, the Supreme Court overruled a longstanding doctrine of judicial deference to agency rules and prescribed more boundaries around the scope of such rules. Scholars have debated to what extent these changes will usher in new forms of judicial review that will transfer power from agencies to the courts.

This Article argues that this debate misses important elements of where agency …

Gendered Words And Patent Grant Rates: A Textual Analysis, Deborah R. Gerhardt, Miriam Marcowitz-Bitton, W. Michael Schuster, Avshalom Elmalech, Omri Suissa, Moshe Mash

Faculty Publications

Text is a vehicle to convey information that reflects the writer’s linguistic style and communication patterns. By studying these attributes, we can discover latent insights about the author and their underlying message. This article uses such an approach to better understand patent applications and their inventors.

While prior research focuses on patent metadata (i.e., filing year or gendered inventor names), we employ machine learning and natural language processing to extract hidden information from the words in patent applications. Through these methods, we find that inventor gender can often be identified from textual attributes—even without knowing the inventor’s name. This ability …

Who's Afraid Of Copyright And Ai?, Deborah R. Gerhardt

Faculty Publications

Copyright and AI need not be a copyright no man’s land. Recent decisions by the Copyright Office have gotten so much media attention that many creators are unsure if they can secure copyright protection if they use AI as a creative tool. The proposed creative control paradigm can help us all tackle the challenge of determining when works created with the assistance of AI are copyrightable. Instead of relying on long-established nuanced precedent for protecting works generated with new technology, the Copyright Office asserts that any content generated with assistance from AI tools is unprotectable. This position is radically inconsistent …

Outsourcing War: Wagner, Private Military Actors, And The Accountability Gap In Modern Conflicts, Dr. Jelena Aparac

Emory International Law Review

No abstract provided.

Bridging The Gap: Predictors Of Alignment Of Parent And Caseworker Perceptions Of Engagement, Jianchao Lai, Michelle I. Graef

Center on Children, Families, and the Law: Faculty Publications

This study examined predictors of alignment between parents’ and caseworkers’ perceptions of family engagement in child welfare services. Using data from 2,274 Alternative Response (AR)–eligible families randomized to AR or Traditional Response, engagement was assessed across the domains of Receptivity, Buy-in, Worker-family Relationship, and Mistrust using a modified Yatchmenoff (2005) scale. Multinomial logistic regression models identified factors associated with agreement and discrepancy between ratings of family engagement within the parent and worker dyad. While both parents and workers valued engagement, workers were more likely to provide higher overall engagement ratings, although the direction of discrepancy varied across specific subscales. Greater …

Allied Professionals In (Academic) Law Libraries, Part I: Evolving Roles, Skills, And Professional Development Needs, Sarah E. Ryan, Mads Ball, Agnes G. Pearcy, Diana Quinones, Dawn L. Smith

Library Staff Publications

Allied professionals comprise a significant portion of the law library workforce, yet their experiences and career pathways are often overlooked in discussions about the profession’s future. This article presents findings from a survey examining how allied professionals pursue professional development, upskilling, and career mobility. While respondents demonstrated a strong commitment to growth, opportunities varied widely and were often limited by institutional support. The authors discuss the survey findings, explore the implications for the profession, and offer recommendations for better supporting allied professionals and recognizing their essential contributions to law librarianship. This is the first in a two-part series.

From Recruitment To Breach: The Impact Of Employment-At-Will On Psychological Contracts, Krystal N. Porlles

Honors Undergraduate Theses

Employment-at-will is the default legal framework governing most private-sector employment relationships in the United States, yet little research has examined how explicit employment-at-will language influences applicants’ psychological expectations before organizational entry. Drawing on signaling theory and psychological contract theory, the present study investigated whether the inclusion of an employment-at-will statement in a job advertisement affected relational psychological contract development, anticipated job insecurity, organizational attractiveness, perceptions of psychological contract breach, emotional reactions, and withdrawal intentions. Undergraduate students (N = 253) were recruited through the University of Central Florida’s SONA research participation system. After data screening, the final analytic sample consisted of …

Moody V. Netchoice And Telecom Law's First Amendment, Blake Reid

Publications

No abstract provided.

Jawbreaking And Counterboning, Blake Reid

Publications

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak …

Open Source Ai, Open Liability Ai, Bryan H. Choi

Publications

The release of open-source AI foundation models has been advertised as “good for the world.” But free public access comes with significant risks of harm. The tacit assumption has been that the “open source” label carries with it automatic immunity from legal liability. Accordingly, critics and skeptics of open-source AI have focused their attacks primarily on whether open-source AI properly qualifies as “open source.”

But the rule of liability for open-source AI should not depend on openness. This Essay explains that the notion of open-source exceptionalism draws upon a discredited theory of charitable immunity. Conventional tort law principles do not …

Source & Solidarity, Sari Mazzurco

Faculty Journal Articles and Book Chapters

Trademark law has become the new frontier of unionbusting. Companies like Trader Joe's, Starbucks, and Medieval Times have brought unprecedented suits against their employee unions for trademark infringement in relation to their organizing activities. This sort of litigation puts courts in the difficult position of reconciling trademark protection with unionization rights. Their attempts to apply standard trademark doctrines in this context reveal a deeper problem: Current trademark law is incoherent when applied to labor unions.

This incoherence stems from a disconnect between current trademark law and the original purpose behind its application to labor unions. This Article recovers that basis …

Measuring Lawyer Mental Illness: Evidence From Two National Surveys, Benjamin David Pyle, Clifford Rosky

Faculty Scholarship

The American Bar Association declared a “well-being crisis” among lawyers, but the empirical basis for this claim has been contested in recent years. This study systematically compares two high-quality, nationally representative surveys —the National Health Interview Survey (NHIS) and the National Survey on Drug Use and Health (NSDUH)—to measure the prevalence of mental illness and alcohol misuse among lawyers. In both surveys, lawyers report elevated rates of alcohol misuse compared to the general public and similarly educated peers. The NHIS finds that lawyers experience psychological distress at rates lower than the general public and similar to, or moderately higher than, …

Regulating Crisis Pregnancy Centers After Nifla And Dobbs: Controversies Over When Government Is Imposing An Orthodoxy About Abortion, Linda C. Mcclain

Faculty Scholarship

How does this broader sense of Barnette’s proscription of government from imposing “what shall be orthodox” implicate governmental restrictions on reproductive autonomy? Battles over reproductive freedom centrally implicate objections that government is unconstitutionally imposing a gender orthodoxy. Arguments for a right of personal autonomy embodying an antitotalitarian principle of liberty are arguments for a right to resist governmental imposition of an orthodoxy— for example, an idea about the natural or traditional role of women as mothers together with a view about how best to respect the sanctity of life. Rights to reproductive autonomy, grounded in personal autonomy and equality, …

Comparison Of Groundwater Ownership Regimes In Ten Jurisdictions Across Five Continents, Gabriel Eckstein, Theo Buchler, Caleb Cook, Heping Dang, Robyn Stein, Stefano Burchi, Gabriela Cuadrado Quesada, Juan Pablo Galeano, Eric Garner, Amy Hardberger, Imad Antoine Ibrahim, Oudi Kgomongwe

Faculty Scholarship

The regulation of groundwater remains underdeveloped globally and often lags behind the domestic governance of surface water. As a result, groundwater is often subject to unfettered extraction, uses, and contamination. A clear understanding of ownership is central to the success of domestic regulations. However, the types of ownership regime in place in nations around the world are poorly documented in the academic literature. This study addresses that gap through a comparative analysis of domestic groundwater ownership regimes across ten jurisdictions in nine countries spanning five continents. It identifies three dominant models of groundwater ownership: private ownership, public ownership, and non-ownership …

Technology-Facilitated Labor Trafficking Power And Control Wheel, Julie A. Dahlstrom

Faculty Scholarship

This wheel is based on the Article, "Digital Servitude":