Law Commons^™

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 …

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 …

Adversarial Certification Of Evidentiary Software, Nicholas G. Vincent, Bryan H. Choi, Eli Siems, Clay Halbert, Katherine J. Strandburg

Publications

No abstract provided.

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

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 …

From Privacy To The Data Economy: The Ftc’S Reframing Of Its Regulatory Priorities, Maria P. Angel

Scholarly Works

This Article argues that the Federal Trade Commission’s turn to “commercial surveillance” reflects a strategic shift away from traditional privacy frameworks toward addressing structural power dynamics in the data economy. Drawing on an analysis of 112 FTC documents, it identifies three core commitments: tackling systemic harms, adopting a political economy lens, and constraining corporate power. The Article contends that this reframing is both necessary in the AI age and should influence the future of privacy regulation in the United States, even amid efforts to limit the FTC’s authority.

Corporate Cybersecurity Governance: Director Liability Under Europe’S Nis2 Directive And The Emerging Fiduciary Duty Of Proactive Cybersecurity Oversight, Stacey B. Barrack

American University Business Law Review

This Comment examines the implications of the European Union’s Network and Information Security 2 Directive (“NIS2”) on corporate cybersecurity governance, with a particular focus on the fiduciary duties of directors in multinational corporations operating in the United States. The NIS2 Directive, adopted in 2023 and currently being transposed into national law by EU member states, mandates that boards of directors must directly approve and oversee—and can be liable for—the cybersecurity risk management measures taken by their companies. 

This Comment delves into the intersection of NIS2 with Delaware corporate law and examines how NIS2 influences the fiduciary duty of oversight for …

Blame It On The Algorithm (But Sue Them Both): Joint Enterprise And Agency In Ai-Driven Hiring Discrimination, Khushi Palan

American University Business Law Review

The proliferation of artificial intelligence (AI) in hiring processes has created a significant accountability gap in employment discrimination law. While federal statutes like Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act focus on finding liability for traditional employers, they fail to adequately address the unique role of third-party AI vendors whose algorithms often drive discriminatory outcomes. This Comment examines the emerging legal landscape through the lens of Mobley v. Workday, where the District Court for the Northern District of California recognized that AI vendors can function as “agents” of …

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 …

Forget Me Not? Machine Unlearning’S Implications For Privacy Law, Jevan Hutson, Cedric Whitney, Jay T. Conrad

Articles

Generative AI systems are increasingly relied on and are already actively reshaping how we think about privacy and data protection law. Models ingest and process vast amounts of personal and sensitive data, challenging assurances of compliance with legal frameworks like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) with increasing intensity. Machine unlearning is an emerging tool in practitioners’ attempts to address these challenges: the act of selectively removing or suppressing specific data, such as personal data that a data subject requests be deleted, from AI models as means of complying with legal obligations or …

In Its Right Mind - Governance Of Social Superintelligence, David Filippi, Bill Tomlinson, Andrew W. Torrance

FIU Law Review

This Comment argues that a broad presumption of public access to court  documents is essential to preserving the legitimacy and constitutional values  of the American legal system. Although the principle of public access is  rooted in common law and constitutional tradition, individual states differ in  how they approach transparency in the context of court documents. These  jurisdictional inconsistencies continue to gain significance, as the digital age  has completely transformed the way people consume information. The  increasing digitization of court records has heightened the need for consistent  and constitutionally grounded standards that preserve transparency while  adequately protecting legitimate privacy interests. Florida’s …

The Lawyer Of The Future: Ethics And Identity In The Age Of Ai, David Yosifon, Michael Santoro, Isaac Nikssarian

American University Law Review

The dawn of artificial intelligence (AI) poses a fundamental challenge to the legal profession’s practical function and social identity. We argue that this challenge should be met as an opportunity to reclaim the profession’s core ethical intentions. We approach the emergence of AI as an occasion to define and safeguard what is irreducibly human in legal work. We ground our approach in the ethical imperatives set out in the American Bar Association’s Model Rules of Professional Conduct, while extending them into an invigorated framework for the AI era.

We survey the uses and ethical challenges associated with cutting-edge deployment of …

By Design, Roger Allan Ford

American University Law Review

In recent years, scholars and policymakers have increasingly embraced regulation “by design” to address new problems, especially those caused by new technologies. These approaches go by various names, like privacy by design, security by design, even the rule of law by design. Despite the popularity of these approaches, though, describing what goes into regulation “by design” is surprisingly challenging. Different speakers use the term in strikingly different ways, with little consensus about why design is important, how design and new technologies interact, or how design can be harnessed to deliver policy results.

Design exists along multiple dimensions: process versus result, …

The Law And Ai As An “Apex Collaborator”: Legal Frameworks For Optimized Cooperation, David S. Filippi, Bill Tomlinson, Andrew W. Torrance

FIU Law Review

Law fundamentally exists to enable human cooperation, providing frameworks for everything from basic contracts to complex international agreements. As artificial intelligence systems grow more sophisticated, they may enable new ways that collaborative activity can occur. We posit the possibility of a new kind of AI entity: the “Apex Collaborator,” a computational system with capabilities for cooperation and partnership that are superior, in at least some ways, to those of humans. Just as apex predators shape the ecosystems in which they live through predation, Apex Collaborators would shape human-AI networks through their ability to enhance peaceful coexistence, collective problem-solving, and shared …

Large Language Scholarship, Alan Rozenshtein, Kevin Frazier

FIU Law Review

Generative AI isn’t just coming for the legal academy—the era of what we call “Large Language Scholarship” is already here. Law professors are using AI to write articles in weeks rather than months. Law reviews face an unprecedented deluge of AI-polished submissions. And the judges who increasingly lean on AI to help draft their own opinions will soon struggle to distinguish genuine insight from sophisticated imitation. Yet, existing scholarship offers only fragmented responses, trapped in misguided debates about plagiarism and disclosure while missing the full scope of the unfolding transformation.

This Article provides the first comprehensive analysis of how generative …

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

Owning Data: Semantic Control As Inaccess To Information, Zvikomborero Chadambuka

FIU Law Review

This Article discusses the impacts of the introduction of a data ownership scheme on access to information. It does so with reference to the distinction between data, defined as some representation of information by a specific medium (the syntactic level), and the information itself (the semantic level). With respect to data, it then looks at the difference between standard property rights and intellectual property (IP) rights, similarly assessing impacts on access to information. Private control at the semantic level is bad policy as it effects particularly serious limitations, relative to private control at the syntactic level, on the availability of …

Let’S Talk About The Biological Reality Of Sex, Baby, John Parsi

FIU Law Review

Sex is at the very core of individual identity. It affects the conception of the self and the way others view the individual. Every day, one’s sex may open and close doors, access to communities, and opportunities. Laws that define sex may affirm scientific knowledge and protect people, or threaten to unravel the facts and the reality of sex. A deep unmooring of sex is underway, and this Article aims to halt it. On day one of the current presidential term, January 20, 2025, President Trump signed an Executive Order on “Defending Women from Gender Ideology Extremism and Restoring Biological …

Contracting For Innovation In The Global South: Empirical Evidence From Brazil, Pablo Marcello Baquero

FIU Law Review

As innovation cycles accelerate, companies seeking to remain at the forefront of the knowledge economy increasingly partner with sophisticated firms to co-create innovation. These collaborations involving pervasive uncertainty are structured through hybrid contractual arrangements that combine features of market-based independence with those of the close coordination typical of the firm. To date, contracting for innovation has been examined primarily in the context of the Global North. In the United States, the literature has focused on the governance mechanisms that parties employ to continuously define their obligations and mitigate opportunism amid profound uncertainty. In Europe, scholarship on contractual networks or organizational …

Exploit Machina, Andrea Matwyshyn

Faculty Scholarship

Over half a century ago, Hannah Arendt cautioned us to “think what we are doing” when we build new technologies. Engaging with her counsel and a set of historical case studies, this Article frames what it calls exploit machina problems. Exploit machina refers to situations where broken technologies and broken governance combine to irreparably harm the public. In other words, exploit machina involves organizational choices to knowingly leverage technology as part of legally problematic conduct, including various forms of fraud. In the language of data science, exploit machina situations implicate strategic decisions in building and managing artificial intelligence (AI); they …

Cybersecurity Mission Creep, Mailyn Fidler

Law Faculty Scholarship

Cybersecurity is experiencing mission creep. Policymakers are casting more and more problems as issues of cybersecurity. So refrained, wildly different policy issues, from misinformation, to child social media safety laws, to antitrust regulations, to alleged journalist misconduct, to anti-sex trafficking statutes become what this Article calls "cybersecuritized." Before this refraining, these issues present as important but not existential. But once cybersecuritization positions the issues as threats intensified by their technological nature, they gain access to the politics and law of urgency and exceptionalism and invite troubling governance responses. Positioned as security threats, cybersecuritized issues become endowed with the apparent normative …

Quantum Ai And The Future Of Corporate Law, Michael R. Siebecker

Cardozo Law Review

As quantum computing and AI surge toward mainstream adoption, how corporate directors satisfy their duties of care and oversight requires some fiduciary recalibration. The current fiduciary framework that allows directors to escape liability absent “gross negligence” or “utter failure” in oversight may no longer be defensible in a world where advanced analytics offer unprecedented capacity to model, monitor, and foresee significant corporate risks. Behavioral economics makes clear that humans (including corporate managers) remain vulnerable to a variety of biases and heuristics shortcuts in decision making. Technological evolution provides the means to correct such cognitive distortions if boards take an active …

Regulating Robotaxis, Bryant Walker Smith, Matthew T. Wansley

Articles

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private …

Seven County Infrastructure Coalition V. Eagle County, Craig A. Rigdon

Public Land & Resources Law Review

The National Environmental Policy Act of 1969 is a landmark in United States environmental law. For more than half a century, under its authority, all federal agencies contemplating proposed actions that pose significant environmental impacts have incorporated an analysis of those impacts into their decisions. These analyses provided an avenue for opponents to challenge an agency’s final decision in federal court. Earlier this year, the Supreme Court issued a “course correction” to rein in the disparate approaches that the lower courts had applied to cases challenging federal agency decisions on NEPA grounds. The unambiguous guidance the Court lays out for …

Did Anderson V. Tiktok Get It Right? Holding Social Media Providers Accountable For Harm To Adolescents, Allison Mitton

BYU Law Review

When dangerous social media challenges go viral and cause harm to adolescents and young children, should the platform be held liable for pushing that content? As it currently stands, Section 230 of the Communications Decency Act of 1934 prevents this from happening. However, Anderson v. TikTok—a recent suit brought on behalf of a ten-year-old girl who died after asphyxiating herself while participating in the viral “Blackout Challenge”—seeks to change that.

The Third Circuit court in Anderson held that social media algorithms should be considered first-party speech, or the platform’s own expressive activity, rather than third-party speech, displaying its users’ expressive …

A Bottom-Up Approach To Ai Facial Recognition Technology Wrongful Arrests And Subsequent 42 U.S.C. § 1983 Actions, Marty Ishmael

University of Cincinnati Law Review

No abstract provided.

Influencing The Meteoric Rise Of Ai: Centering Ethics, Law, And Society In Urgent Policy Reform, Erin L. Shah Mspm, Heath A. Clark Mba, Xarlene B. Choi Bs, Garrett K. Chan Phd

The Guardianship Journal

Artificial intelligence (AI) represents a transformative technological advancement with the potential to yield extraordinary societal benefits while simultaneously introducing significant potential harms to individuals, governments, and society. The adoption of AI has outpaced the ability of society to collectively and cohesively respond through the implementation of adequate regulatory guardrails. While AI presents novel benefits and challenges, the broader dynamic of responding to new, uncharted technologies has historical precedence. The article's methodological approach employed empirical research using law articles and policies. As such, the article explores the benefits, challenges, and actual or potential harms in three business sectors: business and finance, …

The Role Of Artificial Intelligence In Reducing Internet Crimes Against Children, Malyssa Shaw

Student Scholar Symposium Abstracts and Posters

When generative artificial intelligence (AI) first surfaced and broke into the public sphere, my immediate concern was in its development, implementation, and harmful applications. I was not surprised when deepfake technology rapidly advanced alongside these new developments and impacted women and children worldwide. Disproportionately, they have been made victims of intimate media forgery as early as the 1990s, with an unprecedented uptick in recent years as a direct result of these developments. In response, I wrote "Deepfake, Real Harm: Protecting Children in the Age of AI", analyzing data specifically regarding child sexual abuse material (CSAM) created with artificial intelligence while …

Ai In Canadian Workplaces: Why Clear Policies Can’T Wait, Stacy Thomas

Editorials and Commentaries

No abstract provided.