Digital Commons Network^™

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 …

Investment Law, Justice, And Sustainable Development, Frank Emmert, Begaiym Esenkulova

GHEA21 Open Educational Resources

This book is focused on international investment law, justice, and sustainable development. It is intended as a study and research resource for anyone interested in investment law and investor-state dispute settlement (ISDS). It is widely recognized that states receiving foreign direct investment (FDI) often greatly benefit from it, as FDI is one of the driving forces of economic development. Nevertheless, FDI can also cause environmental harm, social unrest, a ‘race-to-the-bottom’ in regulatory standards as well as other negative consequences, if not properly regulated. As FDI may have a double-edged impact, both positive and negative, it is important for states not …

Never Cool Enough: Legal And Policy Challenges To Keeping Data Centers And Communities Empowered In A Warming World, Cristina M. Banahan, Diana B. Wilkinson

Lewis & Clark Law Review

In a rapidly evolving world, artificial intelligence (AI) and cryptocurrency are two technologies at the forefront of the future. Although these developments promise many potential societal benefits and revenue, they come with a price. The data processing required to operate these new technologies demands a large amount of energy, using water to cool the systems and enable them to run without overheating. With such high water and energy demands, the benefits from these technological advancements come at a steep environmental cost. Despite the negative environmental impacts of these data centers, the Trump Administration continues to roll back environmental protections. The …

The Sec And Climate Litigation, Lisa Benjamin

Lewis & Clark Law Review

The controversy surrounding the SEC’s climate-related financial disclosure rule continues. This Essay updates my previous work on this issue, where I identified two opportunities and two obstacles to the SEC promulgating final rules on climate-related financial risk disclosures. The two opportunities were a shifting political landscape under the then-Biden Administration (which took a whole-of-government approach to addressing the climate crisis) and rising investor concern over the risks that climate change posed to their investments. The two obstacles I identified were business resistance to disclosure rules, and rising judicial hostility to the SEC. Today, the political landscape has shifted dramatically and …

Quo Warranto In The Aftermath Of Loper Bright, Dennis Hall

Lewis & Clark Law Review

In 2024, the Supreme Court did away with Chevron deference in Loper Bright Enterprises v. Raimondo. One previously undiscussed consequence of this decision is how it opens the door to a broader use of quo warranto corporate charter revocation. Quo warranto is a legal remedy held by the states that has fallen into relative obscurity, but it has the power to regulate large corporations that have strayed from the bounds of acceptable activity. This Comment examines the history of corporations and corporate oversight regulation in the United States, as well as the history of quo warranto as a remedy. Additionally, …

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

Two Cheers For Cox V. Sony, James Gibson

Law Faculty Publications

There’s a lot to dislike about the Supreme Court’s opinion in Cox Communications, Inc. v. Sony Music Entertainment. It mischaracterizes, oversimplifies, and ignores precedent. It fails to engage with important arguments. It mangles the meaning of “intent.” And it introduces uncertainty into the workings of secondary liability across other intellectual property regimes.

For these reasons, the decision doesn’t deserve three cheers. But it deserves two. Because in two important ways, the Supreme Court has succeeded. First, the opinion fixes some misguided appellate court holdings by articulating a relatively workable standard for future copyright cases involving secondary liability. Second, despite …

Digital Assets And The Property Question, Andrea Tosato, Christopher K. Odinet

Faculty Journal Articles and Book Chapters

Is crypto property? The proliferation of digital assets such as cryptocurrencies, stablecoins, meme coins, and non-fungible tokens (NFTs) has confronted legal systems worldwide with three interdependent challenges: determining whether they are property, identifying their appropriate classification within property taxonomies, and establishing rules for their circulation in commerce. Our Article addresses this tripartite question—the “Property Question”—within American law.

The stakes here are significant. Billions of dollars in digital assets are traded daily, used as collateral, and held by custodial platforms. Yet all these transactions rest on an unresolved premise: that digital assets can be owned and are governed by established property …

Rebooting Administrative Enforcement For The Information Economy, Nina-Simone Edwards

Library Scholarship

This concept paper considers how to strengthen the enforcement of public mandates to deter harmful practices and business models. The paper offers principles for reinvigorated enforcement such as enhanced visibility, the increased use of design as a remedial lever, and personal responsibility for responsible individuals, not only the corporations that employ them.

To advance these principles, we call for new or amended laws that require companies to document how policy becomes code, grant agencies authority to order design changes to products and services, create pathways for charging responsible individuals, and cabin some forms of prosecutorial discretion. We would support these …

Legitimacy And Accountability In The Information-Era Administrative State, Nina-Simone Edwards

Library Scholarship

The current assault on administrative institutions and the rapid influx of automated “solutions” have exacerbated the problems of a system that was already buckling under the strains of functional opacity, technical opacity, unequal access and influence, process proliferation and paralysis, and inaction. An overarching reason for the legitimacy and accountability challenges confronting the administrative state is a paradigm for administrative legitimacy and accountability that is court-centered and no longer fit for purpose.

In this concept paper, we describe two core requirements of legitimacy and accountability–which, as we will explain, are interdependent concepts–and then articulate three component requirements–transparency and demystification, care …

The Limits Of Daca: Affordability- And Access-Related Barriers To Health Professions Education, Nicole Perez, Laura Hirshfield

Journal of College Access

The U.S. is currently facing a shortage of health professionals from underrepresented backgrounds. One potential pathway to decrease this shortage is through the Deferred Action for Childhood Arrivals (DACA) program, a policy that provides temporary relief from deportation for individuals who migrated to the U.S. before age 16. This study, using 15 life-history narrative interviews, investigates the experiences of Latinx young adults who were pursuing health professions education or working as health professionals. Nine of the participants were DACA recipients, while the remaining six were second-generation (i.e., children of immigrants). An iterative, inductive approach to data analysis was used to …

Generative Ai And The Myth Of Creativity, Abdi Aidid

Cardozo Arts & Entertainment Law Journal

It has become almost commonplace to observe that artificial intelligence is straining the boundaries of intellectual property law. Artists and other creators are especially uneasy about the extent to which generative AI systems may displace original works or, when they function as creative aids, provide little in the way of meaningful IP protection. Beneath these concerns, however, lies a more fundamental doctrinal tension: despite its frequently invoked justifications, IP law has never been primarily concerned with rewarding creativity or effort. Courts have longfavored formalistic approaches and minimal thresholds for originality, deliberately avoiding judgments about artistic or aesthetic merit. Similarly, they …

Navigating The Double Helix: Patent Law, Bioethics, And The Regulatory Future Of Gene Editing, Kayla Flanders

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz

Scholarly Works

We study how copyright impacts the distribution and reuse of images in the visual arts sector, exploiting the discontinuity at the 1926 US public domain cutoff together with cross-country variation between US and European museums. We find that public domain status raises artist-level image availability on Useum, a major image aggregator, by approximately 19 percent relative to comparable copyrighted artworks. Onward reuse of Useum images across the web is substantial - an artwork image appears on 76 additional web pages on average - and is higher for public domain artworks, though estimates are statistically significant only in some specifications. Moreover, …

May It Please The Artificial Intelligence: Experimental Ai-Authored Jurisprudence And Authentic Human-Authored Counterparts, Justin Huston, Thomas E. Simmons

South Dakota Law Review

Artificial Intelligence (AI) is rapidly intruding into many professions, from publishing and healthcare to engineering, graphic design, and the law. Law firms are adopting AI for discovery, factual summaries, and briefing. Many courts are embracing AI to streamline docket management and filings. Even some judges are experimenting with AI. This article describes an experiment with the use of an AI Judge to decide both an expert witness issue embedded in a South Dakota Supreme Court appeal and a South Dakota Circuit Court legal malpractice issue. We then compare the AI-generated opinion with the opinions penned by the Judge and Justice, …

Criminal Incidence In Indian Country: Evidence From The Fbi Uniform Crime Reporting Program, K. Aleks Schaeffer, Brian E. Whitacre

South Dakota Law Review

This article examines patterns of criminal incidence in Indian Country using longitudinal, county-level data from the FBI’s Uniform Crime Reporting (“UCR”) Program.  Public discourse and policy debates frequently assume that areas containing tribal lands experience systematically higher levels of crime—particularly violent crime—yet these assumptions are often based on anecdotes, selective statistics, or aggregated victimization reports rather than comprehensive comparative evidence.  Against this backdrop, this article asks a straightforward but underexplored question: how do reported crime rates in counties that include tribal lands compare to those in counties without tribal lands, once socioeconomic and demographic differences are accounted for?

Using data …

A Proposed Tort To Address The Negligent Enablement Of Cloud Data Breaches, Michael L. Rustad

American University Business Law Review

[INTRODUCTION] The term “cloud computing” means the remote storage of software applications, tools, and data accessed through the internet. Cloud customers enter into subscription agreements with providers who give 24/7, on-demand, as-needed access to software, storage, and networking services owned and managed by providers through a web browser. “Many businesses are transitioning to the cloud for data storage, remote work, and collaboration.” Cloud providers operate their software as a software-as-a-service (“SaaS”) model, under which customers pay a subscription fee to access the software. Netflix and Amazon Prime Video are examples of subscription services that deliver television programs and videos through …

Preserving Platform Innovation With A Narrow Exception: Section 230(C)(1) Immunity For Algorithmic Recommendations, John "Jack" Di Masi

American University Business Law Review

This Comment examines Section 230(c)(1)’s immunity for online platforms that use machine-learning algorithms to recommend third party content and proposes a narrow exception for truly “bad-actor” cases. It reviews Section 230’s text, as well as its early cases, showing that Congress intended broad protection for editorial functions such as content organization. It then traces how recommendation algorithms evolved and how courts treat algorithmic sorting as a neutral tool. This Comment addresses conflicting interpretations and defends broad immunity for routine curation. This Comment argues that immunity should be stripped only after a balancing test under a three-factor “bad-actor” framework—one that evaluates …

The Tech-Nuclear Renaissance: A New Critical Juncture For American Nuclear Energy Policy, Henry P. Otte

CMC Senior Theses

Nuclear energy has re-emerged as a central priority in American energy policy. This thesis examines the Trump administration’s efforts to support nuclear energy development and plant restarts, and asks whether today’s nuclear renaissance represents a critical juncture for nuclear energy policy. By analyzing American, French, and Swedish nuclear energy history, this thesis applies a three-variable analytical framework, state autonomy and administrative structure, political permeability, and crisis influence, to identify the institutional conditions necessary for durable policy change and evaluate the structural characteristics of this new environment. The central finding is that today’s push is distinct from prior attempts at expansion, …

Machine Learning Prediction Of Federal Appellate Court Outcomes: A Multi-Circuit Analysis With Administrative Law Implications, Nicky Nuertey Apenahier

Dissertations and Theses

Federal appellate courts are the final arbiters in many cases, yet systematic machine learning analysis across all twelve circuits remains largely absent from the computational law literature. With courts of appeals deciding tens of thousands of cases annually and the Supreme Court reviewing only a fraction, understanding what predicts reversal outcomes has both theoretical importance and practical consequences for litigants, attorneys, and judicial administrators. This study addresses that gap using eleven years of federal appellate decisions from the Federal Judicial Center’s Integrated Database. A systematic comparison of twenty-five machine learning models, spanning five algorithms and five class-imbalance correction strategies, identifies …

Michael Scott Is Not A Juror: The Limits Of Ai In Simulating Human Judgment, Sean Harrington, Hayley Stillwell

Faculty Articles

Can AI replace human jurors? More specifically, can large language models predict how jurors interpret evidence and reach decisions based on legally salient facts and demographic characteristics? As legal scholars and practitioners increasingly explore AI-generated jury simulations, this Article offers the first empirical test of whether models like GPT-4, Claude, and Gemini can faithfully replicate juror reasoning. The answer, for now, is no. Across a series of mock trial scenarios involving redacted confessions, GPT- 4, Claude, and Gemini repeatedly failed to replicate how real jurors interpret evidence or exercise judgment. Their errors were not random, but systematic. Hidden prompts, built-in …

Decluttering The Orbital Commons: A Proposal For The Regulation Of Privately Created Space Debris, Rose W. Cobey

Journal of Air Law and Commerce

Space is one of the only resources shared by every person in every country at all times. The problem of space debris is therefore one that affects everyone living on our planet. Scientists and politicians have warned about crowding, collisions, and murky liability for decades, and each of these issues will only worsen without intervention. Space debris has caused damage on Earth since the Space Race, and it now endangers people and property in orbit. We are at an ever-increasing risk of building a wall around our planet and locking ourselves inside. In the last ten years, a new wrinkle …

Void In Space: How Loper Bright And The Major Questions Doctrine Affect The Federal Communications Commission’S Regulatory Authority Of Orbital Debris, Hernan Valles

Journal of Air Law and Commerce

Since the dawn of the space race, countries have been reaching for the stars. Recently, companies have joined the race. The space race and technological advancement of near-Earth orbital satellites have caused a buildup of debris in near-Earth orbit. The exponential increase of orbital debris in Earth’s orbit threatens the environmental system of the planet, the safety of astronauts aboard the International Space Station, the structure of other spacecraft, and modern economies relying on operational satellites to provide rapid communication, navigation, and weather forecasting information.

Yet there is a void among U.S. regulators in setting rules that mitigate orbital debris …

Outer Space Employment Tax And Grounded Enforceability: A Node-Based Approach Under International Space Law, Binbin Guo

Journal of Air Law and Commerce

As commercial space activities move from state-led exploration to market operations, outer space is changing from a mission space into a workspace. As a result, the traditional connecting point for employment taxes, centered on the workplace, begins to lose force. This Article develops the concept of outer space employment taxation and argues that its key issue is not taxation in orbit, but enforceability. International space law does not directly provide the tax base, tax rates, or specific withholding rules. But through state responsibility, authorization and continuing supervision, and registration coupled with jurisdiction and control, it already provides institutional interfaces through …

Summoning Firms: Promoting Democratic Stability And Economic Prosperity In Times Of Constitutional Crisis, Jon D. Michaels

Emory Business Law Review

No abstract provided.

Fallen Unicorns, Xuan-Thao Nguyen

Emory Business Law Review

Tech unicorns, from healthcare, teledentistry, space, ecommerce, trucking logistics, pre-owned cars, wearables, design, image search, to home-building sectors, receive effusive praises and secure enviable venture capital investments. Very soon after garnering notoriety, these unicorns die. This Article theorizes why unicorns suddenly collapse shortly after they have achieved the mythical status of being the rare tech startups with valuations of one billion dollars or more. With an in-depth case study of fallen unicorns, the Article identifies and examines the reasons for their tragic deaths, offering a critique of the fear of missing out (FOMO), overfunding, and irrational exuberance investors heaped on …

Scrappy Or Strategic? Law Firm Decision-Making In Light Of Executive Orders, Nancy B. Rapoport

Emory Business Law Review

Some of President Donald J. Trump’s early 2025 Executive Orders targeted specific law firms.  These Executive Orders have created a stir within our legal community.  Why did some firms fight those Executive Orders and other firms agree to quick settlements with the Trump administration?  In this article, I use some rudimentary concepts taken from game theory (as in, “I won’t use numbers or mathematical proofs,” so I expect actual game theorists to roll their eyes at my analysis) to analyze two games:  the game of “who within the firm will decide whether to fight or settle” and the game of …

Government Research Funding And The First Amendment, Lisa Larrimore Ouellette

Emory Law Journal

Federal science research funding has become a flashpoint in the second Trump Administration, with grant terminations and political reviews that look like textbook viewpoint discrimination. Yet beyond the apparent simplicity of these cases lies an array of doctrinal puzzles about how the Free Speech Clause applies to choices made in allocating public research dollars. From an innovation-policy perspective, direct funding’s advantage over market-set tools like patent law is government agenda setting—but agenda setting inevitably entails viewpoint choices that skew the scientific marketplace of ideas.

Public research funding warrants focused First Amendment attention for several reasons. First, it often presents the …

Anti-Zionism, Antisemitism, Antidiscrimination, Zalman Rothschild

Articles

This Article uses recent anti-Zionism cases as a case study in hostile environment causation. It briefly surveys the approaches to the causation element that courts have taken in other contexts and then examines the anti-Zionism decisions in detail. It finds that courts in these cases have consistently converged on the narrowest variant of the motive-based approach, treating proof of animus—subjective hostility toward Jews—as the operative route to causation. That approach has its attractions. It preserves breathing space for political speech and resists the claim that opposition to Zionism is necessarily hostility toward Jews. But it is not the only approach …

District Court Of Colorado, Emily Funk

Water Law Review

Save the Colorado v. Semonite, No. 18-cv-03258-CMA, 2025 U.S. Dist. LEXIS 102344 (D. Colo. May 29, 2025)