Law Commons^™

Governing Global Gig Platforms In The Age Of Ai: When The Manager Is An Algorithm, David S. Lee, Felicia F. Chen Prosecution Development Fellow

Vanderbilt Journal of Entertainment & Technology Law

Gig workers are vulnerable to discrimination from the sharing economy platforms on which they work. This challenge is worsened by these platforms’ dependence on algorithms and artificial intelligence (AI) systems, which are used to control and direct gig workers. These platforms also often operate globally, and discrimination embedded within their algorithms can be magnified when exported into new cultural contexts.

These platforms exercise significant influence over gig workers, but their for-profit nature means that their boards and directors often prioritize shareholder value over gig worker protection. This tension has led to intense debates, as platforms attempt to minimize the rights …

Roll For Lawsuit: Are Actual-Play Series Copyright Ingringers?, Mark Mehochko J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

Dungeons and Dragons is a highly popular Tabletop Role-Playing Game designed by Gary Gygax and Dave Arneson in 1973. The game’s emphasis on narrative storytelling makes it an interesting subject for copyright analysis. When a group plays Dungeons and Dragons (D&D) for an audience, using copyrighted materials from Dungeons and Dragons’s publisher, Wizards of the Coast, there is an open question about whether the players infringe on Wizards of the Coast’s exclusive rights under § 106 of the Copyright Act of 1976. This issue is further complicated by Wizards of the Coast’s unique approach to licensing.

This Note examines how …

De-Identified And Unregulated: How Data Brokers Outpace State Privacy Laws, Hannah Moore

Vanderbilt Journal of Entertainment & Technology Law

State consumer privacy laws, though increasingly important in the absence of a comprehensive federal privacy framework, fail to effectively regulate the practices of data brokers who exploit de-identified data. Laws like the Tennessee Information Protection Act (TIPA) exempt de-identified data from key protections, leaving significant gaps in oversight.

While the Health Insurance Portability and Accountability Act (HIPAA) establishes standards for de-identification, advanced analytics and linkage techniques employed by data brokers render this data increasingly susceptible to re-identification. The Federal Trade Commission (FTC) has taken steps to address these risks, but its limited authority highlights the need for comprehensive solutions.

This …

Filling The Sackett Gap: The Private Governance Option, Michael P. Vandenbergh, Elodie O. Currier Stoffel, Steph Tai

Vanderbilt Law School Faculty Publications

The Supreme Court's decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap-the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett's expansive language, the end of Chevron deference, and the 2024 presidential election, and lower …

Alice’S Patent Puzzle: Unlocking Patent Eligibility For Diagnostic Methods Within Wonderland’S Faulty Two-Step Framework, Anjali Dhamsania J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

As it stands today, diagnostic tests and their methods are largely unpatentable. In 2012, the Supreme Court, in Mayo Collaborative Services v. Prometheus Laboratories, Inc., redefined the scope of patent subject matter, leaving a profound impact in the context of medical diagnostics. The subsequent decision by the Court in Alice Corporation v. CLS Bank International two years later significantly expanded the range of judicially created exceptions to statutory patent eligibility criteria to encompass “abstract ideas,” solidifying this “Alice-Mayo” framework as the definitive test to determine patent-eligible subject matter.

But this shift has made it exceedingly difficult to secure diagnostic …

Applying The Public Forum Doctrine To Public Official And Campaign Social Media Accounts, Jonathan Peters, Skylar Bandoly

Vanderbilt Journal of Entertainment & Technology Law

The US Court of Appeals for the Second Circuit ruled in the 2019 case Knight First Amendment Institute at Columbia University v. Trump that the @realDonaldTrump Twitter account was a designated public forum, making it a First Amendment violation for President Trump to block users from it on the basis of their viewpoints. A few years later, in the 2024 case Lindke v. Freed, the US Supreme Court established a two-part test to determine whether a public official’s social media activity constituted state action under 42 U.S.C. § 1983. This Article reviews these and related cases to explore—in the context …

State And Regulatory Agency Approaches To Limiting Deepfakes In Political Advertising, Mary Margaret Burniston J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

With recent advancements in artificial intelligence (AI), regulators have turned their attention to the issue of how—and whether—to regulate the use of AI in political advertisements. While nineteen states have passed legislation regulating AI in political advertising, such regulations may be challenged as violations of the First Amendment. Furthermore, federal agencies also dispute which regulatory agency has jurisdiction to address the problem, with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) both claiming authority. Beyond issues of jurisdiction, agency action is also limited by the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo.

As …

Nil Speeds Ahead While Title Ix Trails Behind: Finding Room For Title Ix In The Evolving Nil Landscape, Sophie Zelony

Vanderbilt Journal of Entertainment & Technology Law

Title IX was enacted to eliminate sex-based discrimination in educational programs receiving federal funding, including intercollegiate athletics. While the law has successfully increased female participation in sports, disparities in the treatment of male and female athletes persist, particularly in the context of publicity and promotional resources. The rise of name, image, and likeness (NIL) opportunities has further widened this gap, as universities and their affiliated collectives disproportionately promote male athletes, enhancing their marketability and NIL earning potential. Schroeder et al. v. University of Oregon presents a novel legal issue—whether Title IX applies to NIL deals when universities provide unequal publicity …

Delaware Supreme Court Clarifies Standard Of Review For Advance Notice Bylaw, Robert S. Reder, Noah Nance

Vanderbilt Law Review En Banc

Delaware’s high court resolves “confusion” by distinguishing “validity” and “enforceability” challenges

An Old Law With New Tricks? The Prospects And Pitfalls Of Using The Antiquities Act Of 1906 To Shape Climate Policy On Federal Lands, Chick Hallinan

Vanderbilt Law Review En Banc

The Antiquities Act of 1906 empowers the president to declare a national monument on federally owned land, subject to constraints. As physical hazards enhanced by climate change endanger historically or biologically valuable objects and places, the Act can shape climate policy on federal land—extending the designation to new tracts and enhancing protections on existing monuments. This Note contends that climate change qualifies as a threat to federal public lands sufficient to trigger presidential authority to proclaim a national monument. Still, any such proclamation must account for the constitutional and statutory restraints that have some gravity on the president’s power to …

Doctors Playing Lawyers: Lessons For Professional Regulation In Crisis, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

When someone gets in legal trouble in America, their case is almost invariably decided by a lawyer (a judge), lay people (a jury), or a combination of the two. Professional discipline, however, is a giant unexplained exception. In professional discipline matters, accusations of dangerous or incompetent practice are decided, usually in the first instance but always in the last, by state licensing boards composed of other members of the accused’s profession. These licensing boards wield immense power as labor regulatory institutions, covering ten times as many American workers as the minimum wage and more workers than private and public sector …

Delaware Supreme Court Rules That Both Of Mfw’S Dual Protections Are Required To Obtain Business Judgment Review Of Any Conflicted Transaction Involving Control Stockholders, Robert S. Reder, Lukas F. Merrill

Vanderbilt Law Review En Banc

In In Re Match Group, Inc. Derivative Litigation, 315 A.3d 446 (Del. 2024) (“Match”), the Supreme Court of Delaware (“Supreme Court” or “Match Court”) considered whether both independent committee approval and an unaffiliated stockholder vote are required to obtain business judgment review of transactions––in addition to so-called freeze-out mergers––in which a controlling stockholder receives a “nonratable benefit” at the expense of public stockholders. Given the gravity of the issues presented, Match ranks as one of the most highly anticipated Supreme Court decisions of recent years.

Substance Over Form: Chancery Court Declares That Post-Closing True-Up Mechanism Requires Independent Accountant To Act As Expert, Not Arbitrator, Robert S. Reder, Nicholas S. Curcio

Vanderbilt Law Review En Banc

No abstract provided.

Foreward, Edward Rubin

Vanderbilt Social Justice Reporter

No abstract provided.

Data Portability Revisited: Toward The Human-Centric, Ai-Driven Data Ecosystems Of Tomorrow, Mark Fenwick Professor Of International Business Law, Michael Fertik Managing Partner, Paulius Jurcys Senior Lecturer, Timo Minssen Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

This Article critically examines the contemporary regulatory framework and discourse surrounding data portability in the United States. Using recent regulatory developments in the European Union as an illustration, this Article suggests that although data access and portability are identified as vital issues in multiple policy instruments, in its current iteration, at least, legal conceptions of portability continue to reinforce the interests of service providers and data controller enterprises rather than individual end users. This Article argues that a paradigm shift toward a more human-centric data approach to data governance must occur, under which data would be recognized as fundamental to …

How The Law Makes Smart Cities Unaccountable, And How To Start Making It Better: Lessons From Sidewalk Toronto, Beatriz Botero Arcila

Vanderbilt Journal of Entertainment & Technology Law

Sidewalk Toronto was the flagship project of Sidewalk Labs, the smart-city subsidiary of Google’s parent company, Alphabet. It was the largest smart-city project planned in North America or Europe. It is also the most notable failure of such a project to date.

Smart city projects and the technologies behind them improve the delivery and efficiency of city services, produce data to help local policymakers learn from their policy interventions and bring several economic development benefits. At the same time, they can create important risks to fundamental rights and enhance the capabilities of corporate and public surveillance. When Sidewalk Toronto was …

Movement Lawyering For Pretrial Justice In Eastern Tennessee, Kiah Duggins, Allen Shropshire, Avery Fairburn, Tyler Foster

Vanderbilt Social Justice Reporter

Judges in Tennessee regularly jail legally innocent people simply because those people cannot afford to pay money bail. Many of Tennessee’s citizens do not have access to healthcare, transportation, employment, or housing, which increases their chances of being arrested, being unable to afford money bail, and becoming further destabilized by pretrial detention. This socioeconomic context, combined with judges’ violations of federal law, make it difficult for advocates to protect indigent people’s pretrial liberty solely through legal tactics. Community organizers in Tennessee have, therefore, strategically combined grassroots organizing with legal tactics to advocate for automatic pretrial release. These organizers’ work demonstrates …

Why Legal Attacks On Transgender People Should Concern All Of Us, Kyle C. Velte

Vanderbilt Social Justice Reporter

No abstract provided.

Queering Carceralism, James Gacek

Vanderbilt Social Justice Reporter

This article endeavours to expand the horizons of queer carceral studies, recognizing it is an apt frame of reference for reconsidering empirical research and advocacy which welcomes queerness as a central and fundamental analytic lens to interrogate carceral capitalist logics. As I have argued elsewhere, we find ourselves in quite the carceral age. Despite the fact queer, trans, and gender nonconforming people continue to be disproportionately incarcerated, if not otherwise affected by the carceral system, queer studies has paid scant attention to the prison, while critical prison studies has only somewhat engaged with queerness. Indeed, the historical illegality, costs, and …

The Sheriff's Constitution, Farhang Heydari

Vanderbilt Law School Faculty Publications

The county sheriff is unique among our nation's law enforcers, with an ancient pedigree, elected status, and special protections as a state constitu- tional officer. But these factors combine to cause a recurrent problem elected sheriffs often assert for themselves the power to refuse to enforce criminal laws of their choosing. Today's constitutional sheriffs-a group of sheriffs who view themselves as the highest authority in their county, answerable only to their electorate-are the latest manifestation of this ethos, declaring opposition to gun control measures, pandemic restric- tions, environmental protections, and more. Lest one think these nonen- forcement decisions are entirely …

Valuing Heat-Related Mortality Risks, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

Heat-related mortality risks are a substantial component of the looming costs of climate change in the United States and globally. This article presents the results from a risk-risk survey to test whether U.S. respondents place a valuation premium on mortality risks from heat relative to cancer and transportation risks. The questionnaire exploits exogenous shocks to temperatures during a heat wave and randomized elements to further test whether preferences vary with heat exposure or the age of individuals exposed to heat risks. The results provide strong evidence that there is no valuation premium in the U.S. for heat-related risks. Subjects valued …

Torts Mismatches, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatcheswhen full compensation of victims and optimal deterrence of injurers are incompatibleoccur elsewhere and explain controversial and unresolved doctrinal areas of torts. …

The Illusion Of Stability In Family Law, Kaiponanea T. Matsumura

Vanderbilt Law Review

Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.

First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even …

Congress’S Power Over The Electoral Count, Larry Schwartztol

Vanderbilt Law Review

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act (“ECRA”), which overhauled the statutory regime governing the counting of electoral votes. The ECRA’s predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the January 6, 2021, attacks on the Capitol, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute’s shortcomings. …

Defense Wins Championships (And Labor Disputes): How The Minor Leagues Can Field Their Position Against Mlb’S ‘Inside Baseball', Blake Morain

Vanderbilt Law Review

For years, minor league baseball players received salaries far below the federal minimum wage, despite working sixty hours per week. It was not uncommon for these professional athletes to share cramped hotel rooms, sleep on floors, or live out of their cars. Most had to secure loans and pursue odd jobs to make ends meet during the offseason. Such sacrifices were necessary for minor leaguers to achieve their dreams of reaching the major league level, particularly as those abysmal working and living conditions became entrenched by adverse legislation and judicial rulings.

Only within the last five years have minor leaguers …

A Crust Of Bread: Religious Resistance And The Fourteenth Amendment, Kurt T. Lash, Stephanie Hall Barclay -- Professor Of Law

Vanderbilt Law Review

In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable …

Goodbye, Zoning?, Michael Allan Wolf

Vanderbilt Law Review

American zoning is under attack on multiple fronts. The concerns of zoning’s many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning’s critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

States-In-Waiting: A Counternarrative Of Global Decolonization, Sannoy Das

Vanderbilt Law School Faculty Publications

How should we, international lawyers, especially with an interest in history, apprehend the experience of, and the horizon of expectation that opened up with, the dissolution of European empires in the decades following the end of World War II? We know that during these decades a Eurocentric international order marked by alien rule and the denial of statehood to large swathes of the world's population was nominally transformed into one marked by sovereign equality. Triumphalist accounts of progress would yoke this transformation to the realization of other good things such as human rights, and economic development.But more commonly today, we …

Generative Al's Illusory Case For Fair Use, Jacqueline C. Charlesworth

Vanderbilt Journal of Entertainment & Technology Law

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, …

A Unicorn No More? The No-Trade Clause And Its Potential To Reshape Nba Contractual Negotiations, Paul Gerstle

Vanderbilt Journal of Entertainment & Technology Law

The no-trade clause, which, in the simplest of terms, allows a player to block his organization from trading him, is somewhat of a unicorn in NBA contractual circles. It has been sparsely used in the National Basketball Association (NBA) history, and there are certainly some good reasons for this. Allowing a player to control his fate without any potential for a trade puts his team in a straitjacket. Thus, teams have long kept their distance from the no-trade clause, with only ten players in NBA history having a no-trade clause in their contract. Most of these players have been legends …