Give It Back: Title in Digital Property, in The Cambridge Handbook of Emerging Issues at the Intersection of Commercial Law and Technology (Stacy-Ann Elvy & Nancy S. Kim eds., 2025)

The Cambridge Handbook of Emerging Issues at the Intersection of Commercial Law and Technology is a timely and interdisciplinary examination of the legal and societal implications of nascent technologies in the global commercial marketplace. Featuring contributions from leading international experts in the field, this volume offers fresh and diverse perspectives on a range of topics, including non-fungible tokens, blockchain technology, the Internet of Things, product liability for defective goods, smart readers, liability for artificial intelligence products and services, and privacy in the era of quantum computing. This work is an invaluable resource for academics, policymakers, and anyone seeking a deeper understanding of the social and legal challenges posed by technological innovation, as well as the role of commercial law in facilitating and regulating emerging technologies.https://scholarlycommons.law.wlu.edu/fac_books/1204/thumbnail.jp

Faculty Publications Display

https://scholarlycommons.law.wlu.edu/scholarcelebration2025/1081/thumbnail.jp

Faculty Publications Display

https://scholarlycommons.law.wlu.edu/scholarcelebration2025/1070/thumbnail.jp

Can Employers SAVE Us from Student Loans? Credentialism, Arms Races, and Debt Forgiveness

America is drowning in student loan debt. About 45 million Americans owe the astounding sum of $1.75 trillion in outstanding student debt, and many of them default on their payments. While most agree that something must be done, attempts to alleviate the problem have met political backlash and legal challenges. In June of 2023, the Supreme Court struck down the Biden administration’s comprehensive student loan debt forgiveness plan, and recently the administration initiated the politically contested “Saving on a Valuable Education” plan (“SAVE”). Amidst this political tug of war, this Article aims to offer a critical and nuanced analysis of the student loan debt crisis. We discuss the crisis’s root causes and critically evaluate the plans currently on the table, arguing they cannot provide a fair and sustainable solution to the problem. In an attempt to reach the root of the student loan debt problem, this Article introduces the phenomenon of the higher education arms race. The educational arms race involves a process through which individuals are pushed to acquire higher education, not because of the intrinsic value of education, but merely because they need a diploma to compete in the labor market. Employers increasingly require college diplomas as a signal for the quality of prospective employees, even in jobs that do not objectively require higher education. For those without higher education, little options remain except for low-paying and menial jobs. These hiring demands force individuals to obtain a degree at all costs, including incurring debilitating debt. This Article stipulates that any long-lasting solution to the student debt crisis must involve measures to alleviate the higher education arms race, and it proposes two such solutions. The first seeks to broaden the scope of post-secondary education through lifelong learning, especially through on-the-job training. We show that on-the-job training can enhance productivity, but that the enhanced productivity is not reflected in the workers’ salaries. We maintain that formalizing on-the-job training can correct this discrepancy and enable employees to receive a wage premium (akin to the premium received for a college diploma) for their training. This, we believe, will mitigate the compulsion to obtain unnecessary and expensive degrees, while broadening access to lifelong education. The second solution involves imposing a fee when employers hire over-educated employees. Hiring over-educated employees implies employers use college credentials solely as a signal for quality, and in these cases, it is efficient and just that employers will pay for the benefit (information) they received—or else stop using it. By adopting employer-focused solutions and promoting lifelong learning, we argue, policy makers can address the root causes of the crisis and diminish the accumulation of debt

Under the Influence: Duties, Deception, Disclosures, and Due Diligence of Social Media Influencers

The encroachment of social media into the daily lives of society reflects a major shift in consumer behavior. As social media moves from providing platforms of narrow connectivity among friends and family to social connection beyond one’s personal network, novel channels are being formed for consumers to absorb and share information. It opens opportunity for corporations to market their products beyond traditional methods and establishes the “influencer” sharing personal thoughts and recommendations on such products. Social media’s immense purchasing power has a direct effect on the decision-making processes of individuals and the profit margins of corporations, and thus, the capacity for harm to the consumers and the corporate landscape is significant. This Note argues that the current regulatory scheme is doing little to effectively enforce social media advertising. Because of this, there is an increased need for social responsibility and due diligence on the part of social media influencers to filter the content and messages consumed by impressionable audiences. Drawing on corporate law theory, tort theory, and advertising regulations, this Note explores what social media influencers’ social responsibility ought to be, including what legal mechanisms can be implemented on social media influencers to hold them accountable for their messaging and influence

Preserving Pixels: The DMCA and the Quest to Preserve Video Gaming’s Legacy

Video games have fundamentally transformed how humans learn, play, and connect, becoming essential cultural artifacts that warrant careful preservation for present and future study. Yet, video game preservation has emerged as a critical challenge for cultural institutions as the medium rapidly evolves and early works become inaccessible due to technological obsolescence and legal barriers. Without immediate action to address the limitations of current Digital Millennium Copyright Act (“DMCA”) exemptions for video game preservation, libraries, archives, and museums risk permanently losing access to historically significant games, with studies showing 87% of pre-2010 video games are already inaccessible. Congress should amend the DMCA to establish broader exemptions for video game preservation by cultural institutions that recognize emulation as a necessary and cost-effective preservation tool, while implementing reasonable access controls that protect copyright holders’ legitimate market interest. While scholars have extensively documented the technical challenges of video game preservation, and others have analyzed the DMCA’s impact on digital preservation generally, existing literature has not comprehensively examined how the triennial rulemaking process specifically impedes institutional efforts to preserve video games in their playable state. This Note analyzes eight years of DMCA rulemaking proceedings to demonstrate how the temporary nature and narrow scope of current exemptions create unnecessary barriers for institutions, especially those using emulation as a preservation solution, while proposing both expanded temporary exemptions and broader statutory reforms that would enable preservation without undermining the commercial reissue market. By examining the technological necessity of emulation alongside the development of DMCA exemptions, this Note provides the first detailed analysis of how misalignment between preservation needs, technological solutions, and regulatory frameworks threatens both the historical record of video games and scholarly access to this culturally significant medium

Life in Limbo: Cryptocurrency and FOSTA as the Pillars of Cyber-Trafficking

As the internet continually advances into Web 3.0, human traffickers thrive in using online platforms to prey on their victims, creating a new form of human trafficking: cyber-trafficking. In 2018, Congress passed the Fight Online Sex Trafficking Act (“FOSTA”) to dampen the stringent protection that 47 U.S.C. § 230 (“Section 230”) offered to internet intermediaries in cyber-trafficking litigation. However, Congress’s intended effect in passing FOSTA failed, as courts continue to interpret FOSTA narrowly, upholding the stringent protection that Section 230 offers internet intermediaries. Beyond FOSTA’s indifferent impact, governmental bodies struggle adapting to Web 3.0’s landscape, neglecting to intervene with traffickers’ use of cryptocurrency’s de-regulated nature to target victims. Consequently, FOSTA and cryptocurrency act as pillars reinforcing cyber-trafficking. Governmental bodies and courts must swing their ideological pendulums to adjust to the early age of Web 3.0 to protect potential victims from cyber-trafficking

Diligent Influence

Social media influencers wield astonishing marketing power. While influencing may be innocuous in some respects, scholars have argued that influencer marketing—which is uniquely high-touch, individualized, and intimate—raises novel consumer safety concerns. These concerns, in turn, beg crucial questions of risk allocation. In her excellent Note, Under the Influence: Duties, Deception, Disclosures, and Due Diligence of Social Media Influencers, Arianna Kiaei describes the psychological and economic impacts of social media influencing and makes a compelling case for influencer accountability. Kiaei argues that current regulations focus too narrowly on the companies promoting their products through influencers; instead, Kiaei suggests that the robust accountability required to protect influenced consumers cannot adequately be achieved without focusing on influencers themselves. To encourage influencer accountability, Under the Influence proposes a diligence solution: Influencers should assess products through personal use and independent research before posting about their experiences on social media platforms. Kiaei borrows from Delaware corporate law to submit that influencers who comply with established due diligence processes might satisfy a duty of oversight reminiscent of that owed by directors and officers as part of the fiduciary duty of loyalty. In theory, in the event of a regulatory crackdown, an influencer’s good faith implementation of investigative systems and monitoring of risks in their social media activities (i.e., diligence) could satisfy any oversight duties courts might impose on them. Kiaei’s ex ante approach to influencer accountability convincingly weaves together observations of influencer credibility, audience trust, and consumer safety to make a case for a strengthened regulatory regime and duty-based compliance. This Comment builds upon Kiaei’s novel contributions. More can be done to incentivize influencer accountability, as Kiaei demonstrates. More can also be done to incentivize companies and third parties to require such accountability. Drawing on contract law, contract theory, and a flourishing body of research on influencer marketing, this Comment contemplates the role of private ordering in social media influencing and considers how companies’ influencer policies might impact major corporate transactions such as mergers and acquisitions (“M&A”). Part I of this Comment considers the use and efficacy of morality clauses in social media influencer contracts. Part II zooms out, using M&A as a framing device to spotlight the signaling functions of private ordering in social media influencing and arguing that this signaling is consequential to companies’ business prospects and financial success. This Comment concludes by revisiting Kiaei’s proposal and joining the call for diligent influence

Drumbl, Sweet, Hughes, and Students

https://scholarlycommons.law.wlu.edu/scholarcelebration2025/1028/thumbnail.jp