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Technology-Assisted Review: Overcoming the Judicial Double-Standard

By: Kate Bauer,

Although it has been nearly six years since technology-assisted review (“TAR”) first garnered judicial approval as a permissible form of document review,[1] inconsistent rulings about the amount of disclosure TAR requires have hobbled its adoption.  Citing the importance of transparency, courts have tended to look more favorably on parties who agree to exchange the relevant and irrelevant documents used to train the algorithm.[2]  When a party refuses to turn over these documents, some courts have regarded TAR usage with skepticism, or even disallowed it.[3]  This emphasis on transparency overlooks a crucial point: courts do not have authority to compel parties to turn over irrelevant documents.[4]  Further, it makes little sense to hold TAR—which has been shown to be more accurate and more cost-effective than traditional human review[5]—to a higher standard than exhaustive manual review.  Indeed, concerns about accuracy are more appropriately leveled at the document review methods parties have traditionally used, which research has shown are notoriously inconsistent.[6]  Accordingly, a court should regard a party’s decision to use TAR with at least as much deference as is given to traditional methodologies.

Technology-assisted review (“TAR”) is a method of document review in which attorneys manually review a subset of documents—commonly referred to as a “seed set”—for relevance, then submit those decisions to a computer algorithm.[7]  The algorithm then (1) examines the documents the attorneys have coded, (2) identifies conceptually similar documents within the collection, and (3) predicts whether these conceptually similar documents are relevant or irrelevant based on how the attorneys coded similar documents in the seed set.[8]  By amplifying attorney decisions on these training documents to similar documents across the document universe, TAR enables attorneys to quickly and accurately categorize documents they have not laid eyes on.[9]  As with human reviewers, attorneys ensure they have properly trained the algorithm by reviewing samples of TAR predictions.[10]  Where TAR predictions are incorrect, attorneys correct erroneous coding on the original training document that informed the TAR predictions.[11]  TAR then adjusts its predictions for all similar documents in the database.[12]

Prior to the development of TAR algorithms, document review was understood to be a linear process in which teams of attorneys reviewed documents one by one. Linear human review is time-consuming, expensive, and inconsistent.[13] Reviewer coding errors amplify these issues because correcting errors requires manual re-review of existing coding decisions.  With the volume of electronically-stored information increasing year over year, the expense of this model has become increasingly unsustainable.[14] To reduce the volume of data for review, attorneys frequently rely on keyword searches (the equivalent of CTRL + F); however, this method has also been shown to have substantial shortcomings.[15]  The burdens of reviewing large amounts of data motivated recent revisions to the Federal Rules to emphasize “proportional[ity] to the needs of the case” as a factor that could be considered in limiting the scope of discovery.[16]

Despite increasing document volumes and research on the shortcomings of traditional review methods, the perception of linear human review as the “gold standard” of document review has stubbornly persisted.[17]  Although empirical data demonstrates that TAR can achieve results as good as or superior to exhaustive manual review,[18] courts hesitated to stray from the accepted linear review model.

In Da Silva Moore v. Publicis Groupe, the first opinion to approve the use of TAR, Judge Andrew Peck lauded the defendant’s decision to turn over the relevant and irrelevant documents it had used to train the algorithm (“seed sets”).[19]  Peck felt that this approach “reduced fears about the so-called ‘black box’ of technology,” and “highly recommend[ed] that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”[20]  However, Judge Peck’s praise for the defendant’s decision to disclose its seed set should not be interpreted as a judicial requirement disclosure; indeed, as he himself noted in a later opinion, Da Silva Moore stopped short of any such requirement.[21]

The Federal Rules of Civil Procedure require cooperation in discovery,[22] but they also dictate that irrelevant documents are outside the scope of discovery.[23]  In defining scope, the Rules state, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case” (emphasis added).[24]  Because relevance to a claim or defense is a prerequisite for obtaining discovery, documents which attorneys identify as irrelevant are, by definition, outside the scope of discovery.[25]

While parties are still free to agree to exchange irrelevant documents if they wish, the Rules do not authorize courts to mandate such disclosure.[26]  In the context of TAR, one court observed that requests for the whole seed set “reached well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find. That [an opposing party] has no right to discover irrelevant or privileged documents seems self-evident.”[27]

Good reasons exist for only authorizing courts to compel the production of relevant documents. As one court has observed, without such limitations a party seeking discovery might “obtain a permit to explore the documents in the possession of his adversary in the hope that he may find something which may adversely affect the adversary’s case, or that may prove helpful to the case of the movant.”[28]  Even if a fishing expedition would be unlikely to unearth anything of value, the client may still wish to withhold irrelevant materials to safeguard against potential disclosure of sensitive, damaging, or embarrassing information of no consequence to the instant litigation.  Because irrelevant materials often run the gamut from fantasy football updates and grocery lists to private medical information and romantic indiscretions, clients have compelling privacy interests at stake in withholding irrelevant materials.[29]

[30][31][32]  In this vein, the DOJ Antitrust Division requests that parties who utilize TAR provide one or more statistically significant samples of nonresponsive documents for DOJ review to ensure obviously responsive documents are not omitted. [33]  However, while t[34]

Nevertheless, several courts have opined that parties should provide access to irrelevant documents in the name of transparency.[35]  This sympathy may be based on misreading Da Silva Moore as requiring disclosure seed sets,[36] when in fact Peck merely praised and encouraged the defendant’s decision to disclose its seed sets.[37]  For example, in one case the court refused to allow a party to use TAR, noting that the party proposing to use it was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . . .”[38]  In several other cases where the parties have agreed to exchange seed sets of their own volition, courts have made it clear that such transparency is expected.[39]  However, requiring that parties exchange documents outside the scope of discovery is an impermissible exercise of judicial authority.

Judge Peck, in his subsequent Rio Tinto v. Vale opinion, observed that whether disclosure of a seed set is required is an “open question.”  He points out that there are alternative methods to evaluate the adequacy of productions besides disclosing seed sets.  Peck mentions three alternatives to seed sets that a requesting party might use to evaluate a production it receives: (1) identifying gaps in the production, (2) calculating statistical recall, or (3) performing a quality control of samples of documents identified as not responsive.[40]  While identifying gaps can be performed by analyzing the contents of productions a party receives, the other two options—like disclosure of seed sets—would require the opposing party to disclose irrelevant documents in its possession.[41]  Here we see one concern motivating these transparency demands: that parties using TAR might be failing—whether by neglect or by design—to disclose relevant documents.  However, as with mandatory disclosure of seed sets, a judicial order requiring parties to reveal irrelevant documents as a condition of using TAR would be an ultra vires act.

The concern that relevant documents are being withheld from discovery is nothing new, and it is not specific to TAR.  Courts have grappled with discovery disputes for the past century, extensively revising discovery rules in the process.[42]  The following process emerged: relevant, unprivileged documents[43] are to be produced upon request,[44] and the producing attorneys must certify that they have made a reasonable inquiry in response to a discovery request.[45]  To ensure cooperation, the Rules impose mandatory sanctions for improper certifications[46] and discretionary sanctions for failure to cooperate in discovery.[47]  Ethical rules supply an affirmative obligation for attorneys to maintain technological competence[48] and to deal fairly with one another.[49]

If the existing discovery rules have been sufficient for traditional review, they must also be sufficient for TAR because both methods rely on the accuracy of human judgment.  Concerns about bad faith aside, when a traditional document production withholds relevant documents, it does so as a result of the inconsistent judgment calls made by humans.  Similarly, to the extent that a TAR production omits relevant documents, it does so because human judgments trained it to do so.[50]  Document review is only as accurate as the judgments of the reviewers performing the review.  Because TAR has been demonstrated to correctly amplify attorney coding decisions more consistently than teams of human reviewers,[51] concerns about the content of a production rest on the same foundation as they ever did: the potential for human error.

Elevated judicial scrutiny of TAR productions is also unwarranted because the rules already require attorneys to certify that they have made a reasonable inquiry in response to a discovery request, regardless of review methodology. [52]  Attorneys who certify unreasonably deficient productions face mandatory sanctions,[53] and discretionary sanctions remain available for failure to cooperate.[54]  These sanctions supply a powerful deterrent against lax review methodologies, whether TAR or traditional. Because TAR enables attorneys to apply their judgment across the document universe more consistently than manual review, TAR actually reduces deficiencies.[55]

For the reasons discussed, it is unreasonable to hold TAR to a higher standard than manual review methodologies.[56]  First, TAR has been shown to be more accurate, cost-effective, and efficient than manual review.[57]  Second, courts have no authority to require parties to disclose irrelevant documents.[58] Attempting to impose ultra vires disclosure requirements on the use of TAR forces parties who refuse to sacrifice their privacy to pursue costly, time-consuming manual review.  Ironically, this process is likely to be less accurate than using TAR in the first place. Third, procedural safeguards already exist to ensure that attorneys are making reasonable inquiries in response to discovery requests.[59] If these procedural safeguards are sufficient to govern manual review despite its shortcomings, they must also be sufficient when employing a superior methodology such as TAR.

The stark reality is that the volume of discoverable data is continuing to grow.  If judges don’t stop imposing unreasonable restraints on the use of TAR, litigation will become a privilege reserved for the few parties who can afford the exploding expense of discovery.


[1] Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182, 192 (S.D.N.Y. 2012).

[2] See, e.g., Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128-29 (S.D.N.Y. 2015) (Peck, M.J.); Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678, 2014 U.S. Dist. WL 3563467, at *10 (D. Nev. 2014); In re Biomet M2a Magnum Hip Implant Prod. Liab. Litig., No. 3:12-MD-2391, 2013 U.S. Dist. WL 6405156, at *2 (N.D. Ind. 2013); Da Silva Moore, 287 F.R.D. at 192.

[3] See, e.g., Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467 at *10; Biomet, 2013 U.S. Dist. WL 6405156, at *1 (“An unexplained lack of cooperation in discovery can lead a court to question why the uncooperative party is hiding something, and such questions can affect the exercise of discretion. . . . But I don’t have any discretion in this dispute. I won’t order Biomet to reveal which of the documents it has disclosed were used in the seed set, but I urge Biomet to re-think its refusal.”).

[4] See Fed. R. Civ. P. 26(b)(1).

[5] See generally Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 1 (2011).

[6] Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt. 697, 701 (2000) (concluding that assessors disagree that a document is relevant at least as often as they agree); David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Commc’ns Ass’n Computing Mach. 289, 295-96 (1985) (finding that paralegals who thought they had retrieved 75% of relevant documents using iterative keyword searches had only found 20%).

[7] See Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 29 (2013).

[8] See id. at 32.

[9] See id.

[10] Id. at 34.

[11] Id. at 33-34.

[12] Id.

[13] See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 199 (2007).  See also Grossman & Cormack, supra note 5 at 37; Voorhees, supra note 6; Blair & Maron, supra note 6.

[14] See The Sedona Conference, supra note 13 (“Even assuming that the profession had the time and resources to continue to conduct manual review of massive sets of electronic data sets (which it does not), the relative efficacy of that approach versus utilizing newly developed automated methods of review remains very much open to debate.”).

[15] See Blair & Maron, supra note 6, at 295-96 (1985).

[16] Fed. R. Civ. P. 26 advisory committee notes to 2015 amendment.

[17] See The Sedona Conference, supra note 13 (“[T]here appears to be a myth that manual review by humans of large amounts of information is as accurate and complete as possible– perhaps even perfect–and constitutes the gold standard by which all searches should be measured.”)

[18] See Grossman & Cormack, supra note 5, at 37 (reporting that manual reviewers identified between 25% and 80% of relevant documents, while technology-assisted review returned between 67% and 86%).  See also Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, J. of Am. Soc’y for Info.  Sci. & Tech. 70, 79 (2010) (performing an empirical assessment to “answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results,” and concluding that “[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review.”).

[19] Da Silva Moore, 287 F.R.D. at 192.

[20] Id.

[21] Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128-29 (S.D.N.Y. 2015) (Peck, M.J.).

[22] Fed. R. Civ. P. 37.

[23] Fed. R. Civ. P. 26(b)(1).

[24] Id.

[25] Id.

[26] See id.

[27] Biomet, 2013 U.S. Dist. WL 6405156, at *1.

[28] United States v. Becton, Dickinson & Co., 30 F.R.D. 132, 134 (D.N.J. 1962).

[29] Matthew Lynch, Discovery Evolutions Hold Promise for Greater Privacy Benefits for Litigants, IT-Lex Technology Law, Oct. 22, 2013, available at

[30] See The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009).

[31] See id.

[32] Id.

[33] Tracy Greer, Technology-Assisted Review and Other Discovery Initiatives at the Antitrust Division, Department of Justice (2014), available at

[34] Fed. R. Civ. P. 26(b)(1).

[35] See, e.g., Bridgestone Ams., Inc. v. Int’l Bus. Machs. Corp., No. 3:13-1196, 2014 U.S. Dist. WL 4923014 at *1 (M.D. Tenn. 2014); Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11; Transcript of Record at 9, 14, Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 1:11-cv-06188 (S.D.N.Y. July 24, 2012).

[36] See Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11 (declining to allow predictive coding when counsel was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . .”). But see Biomet, 2013 U.S. Dist. WL 6405156, at *2 (holding that, while a party’s failure to disclose seed set fell below Sedona Conference Cooperation Proclamation standard, the Proclamation “can’t provide [the court] with authority to compel discovery of information not made discoverable by the Federal Rules.”).

[37] See Da Silva Moore, 287 F.R.D. at 192. (“[Defendant] confirmed that ‘[a]ll of the documents that are reviewed as a function of the seed set, whether [they] are ultimately coded relevant or irrelevant, aside from privilege, will be turned over to’ plaintiffs. . . . This Court highly recommends that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”).  See also Rio Tinto, 306 F.R.D. at 128 (Peck, M.J.) (“One TAR issue that remains open is how transparent and cooperative the parties need to be with respect to the seed or training set(s).”).

[38] Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467, at *11.

[39] See, e.g., Bridgestone, 2014 U.S. Dist. WL 4923014 at *1 (“[O]penness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.”); Transcript of Record at 9, 14, Fed. Hous. Fin. Agency (bench decision requiring transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents except privileged).

[40] Rio Tinto, 306 F.R.D. at 128-29 (“Requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.”).

[41] In order to calculate recall, a party must review a mix of relevant and irrelevant documents.  The party then codes the documents for relevance, and compares its decisions about relevance against the algorithm’s predictions about relevance.  The more alignment between human reviewer and the algorithm’s predictions, the better the recall. See Grossman & Cormack, supra note 7, at 27 (defining “recall” as “[t]he fraction of Relevant Documents that are identified as Relevant by a search or review effort.”).

[42] See, e.g., Fed. R. Civ. P. 26 advisory committee notes to 1946, 1970, 1980, 1983, 1993, 2000, 2006, and 2015 amendments; Fed. R. Civ. P. 37 advisory committee notes to 1970, 1980, 1993, 2000, 2006, and 2015 amendments.

[43] Fed. R. Civ. P. 26(b)(1).

[44] Fed. R. Civ. P. 34(a).

[45] Fed. R. Civ. P. 26(g).

[46] Fed. R. Civ. P. 26(g)(3).

[47] Fed. R. Civ. P. 37(b).

[48] Model Rules of Prof’l Conduct r. 1.1 (Am Bar Ass’n 2016).

[49] Id. at R. 3.4.

[50] See Grossman & Cormack, supra note 7, at 29.

[51] See Grossman & Cormack, supra note 5, at 37.

[52] Fed. R. Civ. P. 26(g).

[53] Id.

[54] Fed. R. Civ. P. 37(b).

[55] See Grossman & Cormack, supra note 5, at 61.

[56] Rio Tinto, 306 F.R.D. at 129 (“[I]t is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”).

[57] See Grossman & Cormack, supra note 5; Voorhees, supra note 6; Blair & Maron, supra note 6.

[58] Fed. R. Civ. P. 26(b)(1).

[59] Fed. R. Civ. P. 26(g)(3); Fed. R. Civ. P. 37(b).

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America’s Overlooked Surrogate Mothers

By: Kate Bauer,

Heart-warming stories of successful surrogacy arrangements permeate the media.[1] Jimmy Fallon, Nicole Kidman, Elizabeth Banks, Elton John, Amy Smart, and Sarah Jessica Parker are just a few of the celebrities who owe their children’s existence to gestational surrogates.[2]  Websites soliciting surrogates extoll the noble and generous “gift” a surrogate gives.[3]  Despite the rosy picture of altruism (for a price)[4] proffered by the success stories and websites, evidence suggests that these transactions prey on lower-income women with few alternatives.

Commercial surrogacy is a business transaction in which buyers rent a woman’s womb to gestate one or more babies.  In return for the rental fee, the woman agrees to surrender the babies she births to the buyers.  There are two types of surrogacy, traditional and gestational.  In traditional surrogacy, the woman’s own egg is artificially inseminated, making her the biological mother of the child she carries.[5]  Traditional surrogacy is generally disfavored due to the legal and emotional complexities involved.[6]  In gestational surrogacy, a child is created through in vitro fertilization (IVF) using the gametes of the buyers or third parties, and then implanted into the surrogate.[7]  A gestational surrogate is not biologically related to the child she carries.[8]

Policy arguments for and against surrogacy abound, but reliable information about surrogates is scarce.  Proponents of surrogacy emphasize a woman’s freedom to contract.[9]  Opponents contend that surrogacy contracts are characterized by unequal bargaining power and inability to accurately forecast costs.[10]  Missing from this debate is reliable information about the surrogates themselves.  Poor women and women carrying multiples are at greater risk of pregnancy complications and death than average,[11] yet anecdotal evidence suggests that these characteristics are common among surrogates.[12]

While the vast majority of developed countries have either banned surrogacy or limited it to altruistic arrangements (i.e. no fee),[13] the United States has no federal legislation regulating surrogacy. [14] State law is a patchwork.[15]  As a result, no reliable statistics are maintained regarding the women who become surrogates.[16]  Analysis of commercial surrogacy therefore rests on anecdotal evidence.  The anecdotal evidence paints a troubling picture.

In the United States, surrogate mothers generally earn between $30,000 and $50,000 to carry a baby to term,[17] though fees as low as $12,000 have been reported.[18]  This amount is just a fraction of the amount buyers invest in the process, generally $116,000 or more.[19]

Surrogacy agencies have revealed that military wives are popular as surrogates.[20] Though they account for just 1% of the population, agencies indicate that between 15 and 20% of surrogates are military wives.[21]  In some geographic locations, military wives make up 50% of the area surrogates.[22] This popularity provides insight into the characteristics that buyers find appealing in a surrogate.

Military wives make good surrogates for three main reasons: (1) they have few alternative job opportunities, (2) their husbands’ incomes are comparatively low, and (3) they have medical insurance.

Regarding lack of job opportunities, Melissa Brisman, who runs a New Jersey surrogacy agency observes, “[Military wives] move around a lot, so they really can’t get their teeth into a career, and if they want to contribute to society and do something useful, [surrogacy is] a good use of their time.”[23] A 2014 study corroborates Brisman’s assessment.[24] The Military Spouse Unemployment Report found that 90% of military wives were underemployed.[25]  Further, among wives 18-24 the unemployment rate was 30%, and among wives 25-44, the unemployment rate was 15%.[26] Study participants cited “frequent moves, deployments, living in areas with poor local labor market conditions, and long hours that keep service members from assisting with parenting” as factors that negatively impacted their employment opportunities.[27]

Low income is likely another factor driving military wives to surrogacy.  New enlistees in the Army start off making as little as $19,000 a year, while more senior enlisted individuals can make up to $37,000.[28] With standard surrogacy fees matching or surpassing yearly income and few realistic job alternatives, surrogacy begins to seem like an appealing option.

Lastly, the U.S. military offers numerous benefits to military families, including free healthcare.[29]  Women with their own healthcare are attractive to buyers of surrogate services, who otherwise must shoulder the surrogate’s medical costs as part of the agreement.  One surrogacy site, for example, expressly tiers its compensation according to whether potential surrogates possess their own healthcare.[30]  Women with health insurance are paid $5,000 more than their counterparts without it.[31]

The heavy utilization of military wives reveals characteristics of desirable surrogacy candidates: women with limited job opportunities, limited income, and minimal medical expenses. Further supporting this assessment is the ongoing trend of outsourcing surrogacy to India, where all medical expenses, including the surrogate’s fee, are available for $12,000.[32] These financial disparities between buyers and surrogates can give rise to unequal bargaining power in the surrogacy context.

Surrogacy contracts are another potential hazard to surrogates.  Due to lack of regulation, buyers employ lawyers to draft custom surrogacy contracts.[33]  These contracts commonly contain provisions requiring the surrogate to carry multiple babies (increasing the risk of pregnancy complications[34]), or to agree to abort one or more babies at the buyer’s request.[35] Though a woman cannot legally be compelled to undergo an abortion against her will,[36] some scholars have posited that the surrogate could be still liable for money damages for failure to comply.[37]  Fear of financial consequences and inability to afford independent legal counsel may coerce unwilling surrogates into honoring these illegal contract provisions.[38]

In addition to the risks of unequal bargaining power, the surrogate’s inability to reliably predict and value the damage her body may incur as a result of pregnancy is a pressing public policy concern.[39]  Individuals have a psychological tendency to underestimate negative consequences (“optimist bias”),[40] which may lead surrogates to irrationally discount the possibility of physical disability or death resulting from pregnancy complications.[41]

In the United States, the interplay between the optimist bias and the physical risks of pregnancy is particularly salient.  Maternal mortality in this country is the highest of any developed country, and rising.[42] The mortality risk is particularly severe for black women, who die from pregnancy-related complications at rate 3 to 4 times that of white women.[43]  Low income women and women in rural areas are also at increased risk,[44] as are women who are pregnant with multiples.[45]  With no official statistics on surrogacy, little data exists to validate the ability of surrogates to appropriately assess their risk of complications.

The risk of surrogate exploitation stands in stark contrast to the narrative of altruistic surrogacy that the media and surrogacy agencies strive to project.[46]  Though anecdotal evidence paints a troubling picture of surrogacy in the United States, little comprehensive analysis is possible without more information.  Collecting demographic data about the women who become surrogates, their pregnancy characteristics, and their maternal outcomes is vital to forming sound public policy regarding surrogacy arrangements.  It’s time to start paying attention to America’s surrogates.


[1] Graham Slaughter, Photo of Toronto Dads with Newborn Son Goes Viral, Toronto Star, July 3, 2014,

[2] Jen Juneau, 32 Famous Families Who’ve Welcomed Children Through Surrogacy, People (Dec. 18, 2017, 6:55 PM),

[3] ART Parenting, About becoming a gestational surrogate mother in Virginia, (“Becoming a surrogate mother requires a level of commitment that only a generous, capable and nurturing woman can meet. We know that raising children is one of the ultimate joys in life. A willingness to share that joy with others is truly admirable . . .”) (last visited Dec. 21, 2017); ConceiveAbilities, Becoming a Surrogate, (“Your desire to help intended parents build their family through gestational surrogacy is both generous and noble.”) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Become a Surrogate, (“Surrogate mothers provide an amazing gift for couples and individuals experiencing infertility. It takes a very special woman to become a Surrogate Mother. . . . Our Surrogates are generously compensated and are truly appreciated and admired for what they are doing.”) (last visited Dec. 21, 2017).

[4] Leslie Morgan Steiner, Who Becomes a Surrogate, The Atlantic, Nov. 25, 2013,

[5] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 470-71 (2015).

[6] Id. at 471.

[7] Id.

[8] Id.

[9] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision Making Capacity, 31 J. Legis. 329, 330 (2005).

[10] Id. at 329-30.

[11] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, (page last updated Nov. 22, 2017); Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

[12] See Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016); see also discussion infra.

[13] Bruce Hale and Stephen Page, Whose Rights Are They, Anyway?, ABA SciTech Law., Summer 2016, 8, 10 (“The United States is alone among Western countries in affirmatively allowing women to be paid a fee to be a gestational surrogate.”).

[14] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 486-87 (2015).

[15] Id.

[16] Ari Shapiro, Surrogate Parenting: A Worldwide Industry, Lacking Global Rules, NPR, June 11, 2015,

[17] Circle Surrogacy & Egg Donation, Compensation and Benefits, ($30,000-$40,000 base fee) (last visited Dec. 21, 2017); ConceiveAbilities, Surrogate Mother Pay, ($35,000-$45,000 base compensation) (last visited Dec. 21, 2017); Modern Family Surrogacy Center, Surrogate FAQs, ($30,000-$50,000 compensation) (last visited Dec. 21, 2017).

[18] Elisabeth Eaves, Want To Work For $3 An Hour?, Forbes, July 24, 2009,

[19] Morrissey, 51 Willamette L. Rev. at 483.

[20] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010,

[21] Id.

[22] Lorraine Ali, The Curious Lives of Surrogates, Newsweek, Mar. 29, 2008,

[23] Astrid Rodrigues and John Meyersohn, Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?, ABC News, Oct. 15, 2010,

[24] Institute for Veterans and Military Families, Military Spouse Unemployment Report, Feb. 12, 2014 at 6,

[25] Id. at 6.

[26] Id.

[27] Id. at 4.

[28] U.S. Army, Army Pay Chart and Basic Pay: Active Duty Soldiers, (last visited Dec. 21, 2017).

[29] See, e.g., U.S. Army, Military Compensation: Army Benefits, (last visited Dec. 21, 2017), U.S. Navy, Military Pay, (last visited Dec. 21, 2017).

[30] Circle Surrogacy & Egg Donation, Compensation and Benefits, ($30,000-$40,000 base fee) (last visited Dec. 21, 2017).

[31] Id.

[32] Abigail Haworth, Surrogate Mothers: Womb for Rent, Marie Claire, July 29, 2007,

[33] Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 516 (2015).

[34] Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

[35] Morrissey, 51 Willamette L. Rev. at 533; Jane Ridley, Confessions of a surrogate mother, New York Post, June 16, 2014,

[36] See, e.g., Fla. Stat. Ann. § 63.213(3)(b); Tex. Fam. Code Ann. § 160.754(g).

[37] John A. Robertson, Precommitment Issues in Bioethics, 81 Tex. L. Rev. 1849, 1869 (2003).

[38] Brandy Zadrozny, Her Body, Their Choice: When a Surrogate Refuses to Abort, The Daily Beast (Dec. 19, 2015, 12:13 PM),; Elizabeth Cohen, Surrogate offered $10,000 to abort baby, CNN, Mar. 6, 2013,

[39] Molly J. Walker Wilson, Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and the Limits on Human Decision Making Capacity, 31 J. Legis. 329, 329-30 (2005).

[40] Id. at 330-31 (“The optimistic bias relates to individuals’ tendency to underestimate risks or negative consequences down the road. In economic terms, the endowment effect captures the idea that people place particular value on goods that they already hold, and value them above other goods with equivalent market values.”).

[41] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017,

 [42] Id.

 [43] Centers for Disease Control and Prevention, Pregnancy-Related Deaths, (page last updated Nov. 22, 2017).

 [44] Morning Edition, Focus On Infants During Childbirth Leaves U.S. Moms In Danger, NPR, May 12, 2017,

 [45] Centers for Disease Control and Prevention, ART and Multiple Births, (page last updated Apr. 13, 2016).

 [46] See Juneau, supra note 2.

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The Impact of Technological Illiteracy

By: Niesha Gibbs,

In today’s society, it is virtually impossible for anyone to excel with the absence of two things; education and computer literacy. Education is considered the great equalizer. Stated differently, it’s the universal key that opens the proverbial door of opportunity. But what happens when you don’t have the key?

At the Bronzeville Scholastic Institute, freshman Jerod Franklin and his peers work on writing assignments in their homework lab.[1] What appears as a common day for any high school, is anything but that. Nearly one thousand individuals, a vast majority of which do not have access to personal computers on a regular basis, share this moderately sized lab of twenty-four systems.[2] Not having access to such technology is a breeding ground for technological illiteracy.

While over 75% of American adults and over 80% of teens use the internet, “some poorer areas in the United States still see comparatively low rates of home computer use.”[3] This occurrence, most notably known as the “digital divide” fosters disparities in basic computer literacy, which translates into far greater socio-economic implications.[4] With the strong presence of cellphones and other smart devices, its counter-intuitive to think that some youth lack even the most minimal computer skills. However, access to the web does not render a person, in this case a school aged students, as having computer literacy.[5]

The blatant fact of the matter with this trend is that it affects the same demographic, which in this case is underprivileged inner city minorities. The lack of digital literacy may include the inability to perform simple functions such as, compose emails, log into online platforms, and even saving work to a thumb or disk drive.[6] Without these basic skills, one becomes unmarketable to potential universities and job opportunities. In attempt to sharpen these skills, 70% of teachers assign homework that requires Internet access.[7] However, the system that may appear to help these youngsters is only hurting them. How can one sharpen a tool without the proper materials? In an attempt to improve digital literacy, imagine the falling grades hundreds of children may receive because all of the aforementioned twenty-four computers in the school’s lab were all being used. Computer literacy programs that are implemented in the inner cities should take a more holistic approach.[8] While more devices are necessary, basic introductory courses should accompany them. Courses that will “enhance participants’ skill sets and ensure they become self-sufficient.” But, how? The answer appears to be funding.

A principal of a predominantly minority based elementary school, Pleasant View, has decided to pursue the answer on behalf of her students.[9] Over the course of one-year Principal Gara Field, applied for and received a grant totaling over $400,000 with some support from her district.[10] This, no doubt, will allow these impressionable students to have the access, capability and understanding of many digital resources. Principal Gara understands an important notion that many others may not. Seeking the answer, before the problems arises makes for the best solution.


[1] See Nick Pandolfo, As Some Schools Plunge into Technology, Poor Schools Are Left Behind, Hechinger Report (2012),

[2] Id.

[3] See John Wihbey, Computer Usage and Access in Low-income Urban Communities, Journalist’s Resource (2013),

[4] Id.

[5] Id.

[6] Id.

[7] See Gage William Salicki, Urban School Districts Still Don’t Have Equal Access to Digital Tools and Education, ctViewpoints (2017),

[8] Id.

[9] See Jennifer D. Jordan, How an Unconventional Principal Turned Around a Struggling urban School, pbs (2015),

[10] Id.

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Could Social Media Be Used to Help Prevent Suicides Rather than a Source to Trigger Them?

By: Nicole Gram,

According to the Centers for Disease Control and Prevention (CDC), suicide was the tenth leading cause of death overall in the United States and the second leading cause among individuals between the ages of 15 and 34 in 2015.[1] To provide further perspective on the statistics, there were more than twice as many suicides in the United States as there were homicides.[2] While it is complex and difficult to predict, there are very often signs that an individual is struggling with suicidal thoughts and behaviors.[3] Social media applications provide a forum in which some individuals share emotions and issues they are experiencing. Facebook even experienced a number of live streamed suicides this past year.[4] As a result, as part of a call to action to proactively identify at risk individuals and prevent them from harming themselves, Facebook is using Artificial Intelligence (AI) technology to scan content with pattern recognition for specific phrases that indicate someone may need help.[5] An AI algorithm identifies and prioritizes the posts for action by the thousands of employee content reviewers.[6] The application then prompts the at-risk individual with options for a helpline, tips to address their issues and feelings, an option to contact another friend or will even notify First Responders in critical situations.[7] Users cannot opt out of this technology that is being tested in the US with plans to rollout to most countries, excluding the European Union due to their regulatory restrictions.[8]

Mental health professionals also recognize the advantage of leveraging technology beyond hospitals, emergency rooms, and ICU for psychiatrists’ offices.[9] The focus of their mission is “alleviating suffering with technology”.[10] The large amounts of data on smartphones and in social media applications are a valuable resource to supplement the patient interviews that mental health professionals are dependent on.[11] They too have an application, named Spreading Activation Mobile (SAM), that uses predictive machine learning to analyze speech and determine whether someone is likely to take their own life.[12] SAM is being tested in Cincinnati schools and looks for increases in negative words and/or decreases in positive words based on language, emotional state and social media footprint.[13]

Time is a key factor in the prevention of suicide and advancements in AI are a continuing trend toward performing more and more tasks that could only be performed by humans previously.[14] In the mental health arena, the availability and evolving quality of fresh data is creating improved and more effective algorithms that can drive earlier identification and action.[15] However, there are several legal implications and challenges with using AI as a tool to prevent suicide. Whenever personal data is involved, concerns about privacy and misuse top the list.  Given the mental health content, there is increased sensitivity about who has access and the potential impact on items such as insurance premiums and coverage.[16] With AI algorithms making decisions and driving actions, an equally important consideration is around who holds the moral and legal responsibility to be accountable when harm is caused.[17] This becomes even more complicated by the autonomous nature of AI technology. As the tool learns from experience and more data, it is possible that AI systems will grow to perform actions not anticipated by their creators.[18] Some experts have proposed a legal framework with a governing authority that certifies AI systems so that operators of certified AI systems have limited tort liability while operators of uncertified systems face strict liability.[19] This appears to provide an appropriate balance, at this point in time, with obtaining the advantage of AI tools and algorithms in preventing suicide while ensuring controls exist to mitigate the risks.[20]


[1] See Peter Holley, Teenage Suicide Is Extremely difficult to Predict. That’s Why Some Experts Are Turning to Machines for Help., Wash. Post (Sept. 26, 2017),

[2] See Suicide, Nat’l Inst. of Mental Health (2015),

[3] See Hayley Tsukayama, Facebook Is Using AI to Try to Prevent Suicide, Wash. Post (Nov. 27, 2017),

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See Tsukayama, supra note 3.

[9] See Holley, supra note 1.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See Matthew U. Scherer, Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies, 29 Harv. J. Law & Tec 353 (2016).

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See Scherer, supra note 14.

[20] See id.

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Net Neutrality

By: David Hart,

Net Neutrality is the idea that your internet service provider must treat all lawful websites equally. They must not block lawful websites, throttle speeds of certain websites, or accept payment to prioritize the speed of the payer’s website. There is currently a proposal by the FCC that would effectively end Net Neutrality.[1] The heart of the issue is whether broadband internet should be classified as a common carrier or as an information service.

Since 2015, the internet has been effectively regulated under a common carrier classification, as opposed to an information service classification.[2] Before the change in 2015, Internet Service Providers were classified as an information service.[3] This changed after the Title II Order, in which the FCC classified providers as a common carrier, which brings with it much more stringent regulations.

An information service is defined as the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.[4] Contrastingly, telecommunication (which is classified as a common carrier) is defined as the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.[5] The common carrier classification applies to services such as railroads, trucking companies, and telecommunication services.[6]  A common carrier provides a service to the general public and cannot discriminate among its users. They are statutorily prevented from discrimination in charges, practices, classifications, regulations, facilities, or services.[7] What this means to your Internet Service Provider is that they cannot increase speeds for websites that they own, or websites that pay them. If Netflix were to offer them money in order to prioritize the access to Netflix, relative to other sites, they are unable to accept. For another example, take Verizon. Verizon owns the Huffington Post. It makes sense that Verizon would want more people to access the Huffington Post. In theory, Verizon could increase their customers’ internet speed for accessing the Huffington Post while decreasing the speed of accessing other news sites, like CNN’s. Currently, they are unable to do so under the common carrier classification.[8] This would not be the case if Internet Service Providers’ classification is changed to that of an “information service.” Relative to a common carrier classification, the information service class is much less regulated. If Internet Service Providers become classified as an information service, instead of a common carrier, they would no longer be prevented from throttling or increasing speeds based on website and would be able to prioritize some sites over others.[9] However, the FCC proposal would require providers to let their customers (and potential customers) know if they blocked, slowed, or prioritized websites.[10]

The FCC will vote on the proposal December 14, 2017.[11] The FCC proposal argues that the regulatory environment of the common carrier classification has delayed new services and stifled innovation.[12] The proposal aims to end FCC micromanagement of innovative business models and restore the Federal Trade Commission’s power to protect consumers from unfair practices without burdensome regulation.[13] Opponents of the proposal argue that a change in classification would effectively allow providers to determine what websites consumers would be able to see and use.[14] This could be even more problematic as many areas of the country are dominated by a limited number of large internet providers, so even if a customer were to be dissatisfied with their provider’s decisions, they’d have few to no other options.[15]


[1] Restoring Internet Freedom, 82 Fed. Reg. 25,568 (Jun. 2, 2017).

[2] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[3] Verizon Communications Inc. v. FCC, 740 F.3d 623 (2014).

[4] 47 U.S.C. § 153 (24) (2017).

[5] 47 U.S.C. § 153 (50) (2017).

[6] 47 U.S.C. § 153 (51) (2017).

[7] 47 U.S.C. § 202 (2017).

[8] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[9] 47 U.S.C. § 202 (2017).

[10] Restoring Internet Freedom Fact Sheet ¶ 216,

[11] Cecilia Kang, F.C.C. Plans Net Neutrality Repeal in a Victory for Telecoms (Nov. 21, 2017),

[12] Restoring Internet Freedom Fact Sheet,

[13] Id.

[14] ACLU: What Is Net Neutrality (Jun. 2017),

[15] Jeff Dunn, America Has An Internet Problem — but a Radical Change Could Solve It, Business Insider (Apr. 23, 2017),

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Juror Emotion

By: Niesha Gibbs,

Should jurors be completely void of emotion? When posed with this question, I impulsively answered no. Prompting my answer are cases like that of Cyntoia Brown. Brown’s story has garnered the attention of thousands after a recent post about her went viral. In 2006, the then 16-year-old Brown was sentenced to life imprisonment for the murder of 43-year year old Jonathan Allen.[1] Allen attempted to rape Cyntoia, and in self-defense she shot and killed him.[2] Brown was tried as an adult and ultimately convicted of first degree felony murder and aggravated robbery.[3] Cyntoia’s case, like many others, is a prime example of when just a bit more understanding from a jury would have had an entirely different outcome. Nonetheless, there are instances where far too much emotion certainly clouds judgment. So, where does this leave the plight of nearly all jurors? The unspoken plight of finding the delicate balance between acknowledging sympathy while applying an impartial balance of the law? One solution being offered is artificial intelligence.[4]

With technology present in nearly every facet of the legal profession, from e-discovery to electronic filing, it should come as no surprise that technology has now pervaded to the courtroom itself. Currently, technical advances are being used to “transfer” jurors to the actual crime scene of the trial they are sitting on.[5] However, the strides of modernizing courtrooms haven’t stopped there, robots or algorithms are now being used to determine the guilt or innocence of a defendant.[6] The company Nortpointe, Inc. has created software, Compas, that is designed to assist courts or judges with making “better” – or at least more data-centric – decisions in court.”[7]

While this hasn’t become a widespread practice, it has attracted the attention of prominent legal figures, namely the Honorable Chief Justice John G. Roberts Jr.[8] After being asked about the effect of artificial intelligence in the courtroom, Justice Roberts described it as “putting a significant strain on how the judiciary goes about doings things.”[9] Roberts comments were given over two months after the Supreme Court declined to review the case of Eric Loomis.[10]

In early 2013, Loomis was “sentenced to six years in prison at least in part by the recommendation of a private company’s secret proprietary software.”[11] One can’t help but to believe this decision was partially or even wholly motivated by the implications of such a ruling. Additionally, as with any new discovery, the potential problems that could arise if this method was endorsed by the Court. For example, hacking is regularly associated with some of the most sensationalized scandals. One could only imagine the potential issues that could arise during a highly contentious case, with someone’s life in the balance. Regardless of which side you are positioned on this issue, one point that both sides will concede is that as jurors each person brings their own world view. This worldview is a lens through which legal advocates often rely during a trial. Further, as humans, we have the unique ability to empathize with one another. An ability I think should never be undervalued or overlooked.


[1] See AJ Willingham, Why Cyntoia Brown, Who Is Spending Life in Prison for Murder, Is All Over Social Media, CNN (2017),

[2] See id.

[3] See id.

[4] See Kayla Mathews, Is AI Getting Closer to Replacing Jurors, ProductivityBytes (2017),

[5] See Nick Caloway, Investigators Use 3D Technology to Solve Crimes, Bring Scenes to Juries, (2016),

[6] See Mathews, supra note 4.

[7] Christopher Markou, Why Using AI to Sentence Criminals is a Dangerous Idea, The Conversation (2017),

[8] See See Adam Liptak, Sent to Prison by a Software Program’s Secret Algorithms Sidebar, New York Times (2017),

[9] See id.

[10] Amy Howe, Federal Government Files Invitation Briefs, SCOTUSblog (2017),

[11] See Liptak, supra note 8.

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HUMVEE Maker Files Trademark Case against Call of Duty

By: Seth Bruneel,

The ears of any lawyer who even dabbles in video games will perk up at the mention of “Call of Duty” and their attention will be fully captured when the title of the popular video game is found in context with “lawsuit.” Such is the case here. The maker of Call of Duty, Activision, is being sued by AM General for trademark infringement. [1]

AM General owns the registered trademark “HMMWV” (Reg. No. 3026594), more commonly referred to as “HUMVEE” (Reg. NO. 1697530). AM General alleges that by using the vehicles and names in Call of Duty Activision “[w]rongfully leverag[es] the goodwill and reputation AM General has developed in these marks … in advertising and promotion of their Call of Duty video game franchise” and that Activision uses the trademarks in the “manufacture and sale of collateral toys and books to further derive wrongful profits.”[2]

There is little room to dispute that Activision is using the trademark in the video games as shown in some of the pictures from AM General’s brief. [3] (In its brief (link) AM General provides further analysis of the similarities.)

AM General Activision


Activision has yet to file an answer to the complaint but there are several defenses that would qualify their use of the trademarks as non-infringement including: lack of consumer confusion and fair-use. [5]

The main test for infringement of a trademark is the likelihood of confusion. [6] However, here Activision has a strong argument that there is not likelihood of confusion because there is no intent to confuse. In fact, the best defense to the idea that consumers will confuse the Call of Duty version of the HUMVEE and AM General’s HUMVEE is to admit that they are both the same vehicle. Activision will then need to show that the use of the trademark is an allowable use.

One such use would be if the use of HUMVEE was a fair-use. Activision’s use of the registered trademarks is fair use if an alleged infringer uses a mark solely to describe the trademark holder’s product, but not the alleged infringer’s produce, for purposes such as comparison, criticism, or simply a point of reference. [7] In this upcoming action, Activing is merely using the trademarked terms and likenesses to refer to AM General’s military vehicles without referring to any of Activision’s products so the trademarks are used simply as a point of reference.

Another way for Activision to escape liability is to claim a free-speech defense. Activision’s use of the trademarks can be free-speech if it meets the Rogers Test. [8] The Rogers test says that a “use of a trademark that would otherwise violate the Lanham Act is not actionable unless [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it same some artistic relevance, unless [it] explicitly misleads as to the source or content of the work”. [9] Here, it is likely that the court will find that Activision’s use of the trademarks HUMVEE and MMMWV has “at least some artistic relevance” so the court will have to decide if the use misleads consumers as to the source of the HUMVEEs. [10] It is on this second prong of the test that Activision will likely succeed because there is little argument that Call of Duty explicitly mislead consumers to believe that the HUMVEEs are made by Call of Duty, rather than AM General.

While it may seem Activision is likely to evade liability for using AM General’s trademarks in-game, Activision could be in real trouble with the toy products as the toys do much more than simply use HUMVEE as a point of reference. [11] The toys present a higher likelihood of confusion for consumers as they could see the military vehicle as a Call of Duty product rather than a product of American General.[12]

The pending litigation is intriguing as it presents a confluence of commercial and artistic use. While I expect more practical solutions before a judge’s final ruling, it would be interesting to see if the courts are still likely to find that the use is artistic (thus, non-infringing) when the infringer gobbles up such massive amounts of commercial success as Call of Duty: Modern Warfare ($1.23 Billion). [13]


[1] Anandashankar Mazumdar, Humvee Maker Targets Activision’s ‘Call of Duty’ in Trademark Case, PATENT, TRADEMARK & COPYRIGHT J. BNA, (Nov. 10, 2017).

[2] Complaint at 1-2, AM General v. Activision Blizzard, (S.D.N.Y, Nov. 7, 2017) (No. 2:17-cv-08644).

[3] Id. at 5-7, 14-16, 20-22.

[4] Id. at 5-6, 16, 20, (Figs. 1, 2, 11, 12).

[5] Winthrop & Weinstine, Call of Duty Trademark Lawsuit: A Humvee Humdinger, DUETS BLOG (Nov. 15, 2017), (last visited Nov. 28, 2017).

[6] Lanham Act, 15 U.S.C. § 1114 (2017).

[7] See Winthrop, supra note 4.

 [8] See RockStar Videos, 547 F.3d at 1095(quoting Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989)).

[9] Id.

[10] Id. at 1099-1101.

[11] See Muzumdar, supra note 1.

[12] Supra note 2, at 29.

[13] Tom Gernencer, How Much Money Has Every Call of Duty Game Made?, MONEYNATION (Dec. 23, 2015), (last visited Nov. 28, 2017).

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Fishing for Location

By: David Hart,

It is no longer the era of buddy-cop stakeouts, waiting outside of a suspect’s home or hangout. Instead, law enforcement has been employing a device that pinpoints a supposed criminal’s location. The most well-known brand of this device is the StingRay, which has become the catch-all term for these devices. The StingRay disguises itself as a cellphone tower, tricking the suspect’s phone into transmitting data to it.[1] This may seem fine at first glance; after all, who doesn’t want criminals off our streets? Unfortunately, it’s not as cut and dry as it seems. The device does not simply target one cellphone. It dupes all cell phones in an area to send information.[2] Additionally, law enforcement does not always obtain a search warrant before utilizing StingRays.[3] So not only is a net being dragged through innocent citizens’ data, oftentimes law enforcement does not explain their probable cause to a magistrate, in an attempt to obtain a warrant, before targeting a suspect’s cell phone. The use of these devices raises significant privacy and civil liberty concerns.

The law struggles to keep up with the sprinting advance of technology, but it seems the judiciary is finally closing the gap. An important development has recently come from the D.C. Court of Appeals, through the case of Jones v. United States. Jones was convicted on charges of sexual assault and robbery.[4] Law enforcement had used a StingRay-type device (a cell-site simulator) to locate him, without obtaining a warrant.[5] Jones argued that this was a 4th amendment violation but the trial court denied his claim.[6] Jones then appealed his conviction to the D.C. Court of Appeals. The Court found that “the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause.”[7] In the words of Judge Beckwith, “under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cellphone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.”[8]

The D.C. Court of Appeals is not the only authority that has spoken on the issue of StingRays. In 2016, The Maryland Court of Special Appeals held that law enforcement must have a valid warrant to use cell-site simulators.[9] The Baltimore City Police Department had used a cell-site simulator to locate Kerron Andrews, who was wanted on charges of attempted murder.[10] They tracked his cellphone with this device and located him in a residence.[11] Andrews claimed that the use of this device without a warrant was a violation of the 4th amendment. The Court found that the use of the cell-site simulator was indeed a 4th amendment violation and suppressed the evidence found in the residence where Andrews was located.[12]

Virginia is one of the states that has passed laws restricting the use of StingRay devices. VA Code § 19.2 – 70.3 K. provides that: “an investigative or law-enforcement officer shall not use any device to obtain electronic communications or collect real-time location data from an electronic device without first obtaining a search warrant authorizing the use of the device if, in order to obtain the contents of such electronic communications or such real-time location data from the provider of electronic communication service or remote computing service, such officer would be required to obtain a search warrant pursuant to this section.”[13] In essence, this means that if law enforcement would need a warrant to get location data from a cell-service provider then they also need a warrant to use a StingRay device.

With courts ruling against warrantless use of StingRay devices and legislatures passing laws requiring warrants, it seems we’re headed in the right direction in regards to cell-phone locating and our 4th amendment rights.


[1] See Cyrus Farivar, Another Court Tells Police: Want to Use a Stingray? Get a Warrant (Sep. 22, 2017),

[2] Id.

[3] See generally, Jones v. United States, 168 A.3d 703 (2017); State v. Andrews, 227 Md. App. 350 (2015).

[4] See Jones v. United States, 168 A.3d 703, 707 (2017).

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 715.

[9] See generally, State v. Andrews, 227 Md. App. 350 (2015).

[10] Id. at 354.

[11] Id.

[12] See generally, State v. Andrews, 227 Md. App. 350 (2015).

[13] See Va. Code Ann. § 19.2 – 70.3 (2017).

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#Sponsored: Holding Social Media Influencers Responsible for Their Representations

By: Helen Vu,

Those familiar with the social media world may recall the disaster that was the inaugural Fyre Festival. The music festival was slated to take place during a weekend in April 2017 on the island of Great Exuma, in the Bahamas.[1] Organized by an entrepreneur named Billy McFarlane, Fyre Festival was framed as “Coachella in the Caribbean”[2] and was promoted almost exclusively through social media platforms such as Instagram, Facebook, and Twitter.[3] Organizers paid celebrities and social media influencers, such as Jeffrey “Ja Rule” Atkins, Bella Hadid, and Kendall Jenner, to upload posts promoting the event onto their Instagram accounts.[4] These influencers, who have millions of followers, convinced their fans to hand over thousands of dollars for tickets to a lavish music festival on a tropical island.[5]

Unfortunately, the event turned into more of a dumpster fire than a Fyre Festival. The organizers were woefully unprepared for the actual event, had barely anything set up, and cancelled the festival as people were boarding planes from Miami to the Bahamas.[6] A large group of individuals received the news too late and ended up stuck on an island with not enough departing flights.[7] These unlucky attendees had to wait a day to find a flight back to the United States.[8] Meanwhile, instead of staying in the beachside villas promised, they had to find shelter in half-built tents.[9] At mealtime, organizers handed festivalgoers cheese sandwiches rather than the world-class cuisine they paid for.[10] Social media lit up with discussions of how the Fyre Festival had turned into such a nightmare and how the organizers had known for at least a month that there was no feasible way that the event could occur.[11] Eventually the failed festival became old news but as the furor died down, legal consequences for the festival organizers and promoters began rolling in.[12]

Several individuals brought class action lawsuits on behalf of other festivalgoers, alleging fraud, breach of contract, and negligent misrepresentation.[13] While these complaints all name the main organizer, Mr. McFarlane, as a defendant, it is noteworthy that some of the claimants attempt to hold the influencers who promoted the Fyre Festival accountable as well.[14] A suit filed in the United States District Court for the Central District of California included claims against 50 unnamed individuals, alleging that these defendants made misrepresentations to their followers to induce them into purchasing tickets to the event.[15] Another suit was brought in the Los Angeles County Superior Court against 100 unnamed individuals, claiming false and misleading advertising.[16] It is unclear whether the Fyre Festival ticketholders have a valid claim against the promoters who advertised the event on their social media accounts. After all, attendees purchased their tickets from the organizers rather than the promoters. In addition, these celebrities likely did not have much more knowledge of the event than the attendees did. They merely posted promotional content with a tap of a finger in exchange for compensation.

As social media developed and its use grew exponentially, users who had extremely high numbers of followers found a way to take advantage of the influence they had over so many individuals. Brands and companies commonly pay popular users to post material on their social media accounts promoting goods and services. These sponsored posts are often couched as recommendations from the influencer to her followers rather than as outright advertisements. Thus, users view these sponsored posts as more authentic than regular ads posted by the companies themselves.[17] As this business-savvy practice grows, steps should be taken to ensure that these promoters post truthful material or, at the least, do diligent research on the products they advertise. The companies who pay for these posts have regulations they must follow themselves when they advertise directly to consumers.[18] Instagram influencers should have similar regulations as well. Otherwise, little stops them from posting false advertising for the company that pays the most.

The Federal Trade Commission (“FTC”) is a federal agency that protects consumers from unfair, deceptive, and fraudulent practices in the marketplace by regulating advertising and marketing.[19] While the bulk of the work that the FTC does involves traditional methods of advertising, it has gotten more involved with social media marketing as online influencers play an increasingly larger role in promoting products and services. The FTC recently sent more than 90 letters to influencers and online marketers reminding them that they are required to disclose to their followers which social media posts they are being paid to upload as a promotion or endorsement.[20] This signals a shift from holding only the brands responsible for advertising violations to making the influencers accountable as well.[21]

While the Fyre Festival is arguably the most well known social media marketing failure, it is only a part of the bigger picture involving promotional posts, influencers, and fraud. Internet users will find more and more innovative ways of using social media not just to connect with friends but also to make money. How will we ensure that those making financial gains off an inherently untrustworthy medium are held responsible for their actions? Does the FTC have the power to strictly regulate anyone who gets compensated for his or her posts, even if the posts are on a forum for self-expression? Influencer marketing fraud is a growing area of concern not just for the consumers who may fall prey to deceptive advertising, but for the influencers who may be held liable for their sponsored posts as well.[22]


[1] See Bryan Burrough, Fyre Festival: Anatomy of a Millennial Marketing Fiasco Waiting to Happen.  Vanity Fair, Aug. 2017,

[2] Id.

[3] See id.

[4] See id.  

[5] See id.

[6] See id.

[7] See Burrough, supra note 1. 

[8] See id.

[9] Jung v. McFarland, No. 2:17-cv-03245 (D. Cal. filed Apr. 30, 2017).

[10] See id. 

[11] Burrough, supra note 1.

[12] See Jeff John Roberts, Celebrity Influencers Face Moment of Truth in Fyre Festival Lawsuit, Fortune (May 7, 2017),

[13] See The Fyre Festival is Facing 9 Lawsuits, FBI Investigation, Organizer Arrested, The Fashion Law (July 3, 2017),

[14] See id.

[15] See Jung, No. 2:17-cv-03245.

[16] See Chinery v. Fyre Media, Inc., No. BC659938 (Super. Ct. Cal. filed May 2, 2017).

[17] See Shareen Pathak, Cheatsheet: what you need to know about influencer fraud, Digiday (Nov. 3, 2017),

[18] Federal Trade Commission, Advertising and Marketing on the Internet (Sept. 2009),

[19] Federal Trade Commission, What We Do, (last visited Nov. 21, 2017).

[20] Federal Trade Commission, FTC Staff Reminds Influencers and Brands to Clearly Disclose Relationship (Apr. 19, 2017),

[21] Roberts, supra note 12.

[22] See id.

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Can an Employer Fire You If You Sit on Facebook Too Much?

By: Daria Ivanova,

In 1990, Congress enacted Americans with Disabilities Act with a purpose to protect individuals with disabilities from workforce discrimination.[1]  The ADA was a successor to the Rehabilitation Act of 1973, which was the first attempt of Congress to fill the gap in the Civil Rights Act of 1964, in relation to discrimination based on a “physical or mental impairment.”[2] However, the Rehabilitation Act’s reach was limited to only employers “receiving Federal financial assistance,”[3] and the ADA eliminated this limitation covering other employers as well.[4] Congress experienced difficulties in defining a “disability” when enacting the Rehabilitation Act, but the definition they settled on was essentially incorporated into the ADA. The ADA defines a “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment.”[5] In order for a plaintiff to prove disability discrimination, he or she must show that: (1) the employer is an entity covered by the ADA; (2) the plaintiff meets the definition of “disabled” under the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of his or her job, with or without reasonable accommodation; and (4) the plaintiff suffered adverse employment action based on the disability.[6]

Following the enactment of the ADA, the Equal Employment Opportunity Commission (EEOC) and the Supreme Court of the United States limited the application of the Act by narrowing the definition of a “disability.” The formerly defined “substantially limits” as “(i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner duration under which an individual can perform a particular major life activity.”[7] The Supreme Court did a similar thing in the case Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and Sutton v. United Air Lines, Inc. In the first case, the Court found that for the impairment to be debilitating to the ADA level, it must “prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people’s daily lives.”[8] In the second case, the Court limited the meaning of the phrase “regard as” in the last prong of the statute. The Court stated that it required “an ADA plaintiff to show that the  employer regarded the plaintiff as having an impairment that substantially limited a major life function, as opposed to merely showing that the employer regarded the plaintiff as having an impairment.”[9] However, in 2008, Congress pushed back by introducing the ADA Amendments Act (“ADAAA”) with the purpose of “restoring the intent and protections of the Americans with Disabilities Act of 1990,” [because] “the holdings of the Supreme Court [in Sutton and Toyota] have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” [10] Moreover, the ADAAA stated that the definition of a disability was to be interpreted in the broadest extent allowed by the Act and covering the broadest coverage of individuals.[11]

As surprising as it may seem, scientists still cannot come to an agreement as to the definition of an addiction. Moreover, it has been said that the state of scientific discussion regarding the definition is in a state of “conceptual chaos.”[12] For example, the APA’s Diagnostic and Statistical Manual of Mental Disorders (“DSM IV-TR”) does not even use the word “addiction,” but uses “substance dependence” defining it as “[a] maladaptive pattern of substance use, leading to clinically significant impairment or distress,” and setting forth seven criteria to aid in diagnosis.”[13] Traditionally, the state of an addiction (even though there was no agreement as to its definition) was said to consist of two elements of (1) tolerance and (2) withdrawal. The first one “refers to the tendency of a given dosage of a substance to be less successful in achieving the desired effect over time.”[14] The second one presents itself by “physiological side effects that result from the cessation of repeated use of a substance.”[15] Simply stated, when the body is exposed to a potent drug, it maintains the balance through counter-regulatory mechanisms; for example, in reaction to alcohol, which is a depressant, the body produces more stimulants.[16] These two factors are often elaborated by other, behavioral, factors indicating the person’s relationship to the drug.[17]

As early as 1990, researchers started discussing the idea that addiction might not only include the substance abuse, but also certain excessive behavior, such as shopping, Internet use, and sex addictions.[18]  The latest Diagnostic and Statistical Manual of Mental Disorders (DSM-5) did not include behavioral disorders, except for gambling, but recommended them for further research.[19] Two of the theories which support the idea of including behavioral addiction are (1) the “dopamine theory” and (2) “the looks-like addiction theory.” The “dopamine theory” rationalizes behavioral addiction  because it “corresponds with activity in the brain’s reward circuitry similar to that which occurs during drug use.” [20] The “looks-like-addiction theory” bases its conclusion on the fact that “the relationship between an individual and the behavior looks like the relationship between an individual and a drug because both involve craving, excessive use, withdrawal, tolerance, and continuation despite negative repercussions.”[21]

Within the framework of ADA, Internet addiction started to be widely discussed after Congress expressly stated its willingness to apply the ADA on as many cases as permitted by the text of the Act. Additionally, courts have held that once a health professional diagnoses a mental health condition, this condition can count as an “impairment” under the ADA.[22] The regulations proposed by the EEOC to implement the ADAAA included “major depression, bipolar disorder, [and] PTSD.”[23] For example, in order for a plaintiff to be able to make a case under the ADA, he would have to bring an expert testifying that Internet addiction is a mental health condition which substantially limits one or more major life activities of a plaintiff, such as not allowing a plaintiff to interact with other people due to prolonged Internet usage. This scenario in the example does not seem too crazy. The plaintiff in Pacenza v. IBM Corp. tried to link his “long-standing Internet sexual addiction” to PSTD he suffered after the Vietnam War and sexual abuse he suffered as a child.[24] Pacenza’s job did not require his utmost attention all of the time, and one of the ways he filled his time was participating in sexually-explicit chat rooms.[25] Pacenza received a warning after the first time, but, subsequently, his supervisor caught him again and discharged Pacenza.[26] Pacenza sued IBL claiming protection under the ADA because his PTSD “manifested through various addictive behaviors including ‘Internet sex addiction.’”[27] The U.S. District Court for the Southern District of New York granted summary judgement to IBM, but based its decision on the fact that Pacenza’s supervisor did not know about his PTSD; thus, the court neither completely foreclosed, nor validated the ability of prevailing in the ADA suit based on a behavioral addiction. As society gets more technologically dependent, it seems fairly certain that these arguments could potentially become more prevalent and more accepted by the courts.


[1] Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a), 104 Stat. 327, 328-29 (codified as amended at 42 U.S.C. § 12101(a) (2006)).

[2] 42 U.S.C. § 12102(1)(A) (Supp. II 2008).

[3] Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, § 504 (codified as amended in scattered sections of 29 U.S.C.).

[4] See 42 U.S.C. § 12111(5)(A) (2006) (“The term ‘employer’ means a person engaged in an industry affecting commerce who has 15 or more employees….”).

[5] See Rehabilitation Act Amendments of 1974, Pub. L. No. 93-516, § 111(a), 88 Stat. 1617, 1619.

[6] Behavioral Addictions and the Law.

[7] 29 C.F.R. § 1630.2(j)(1) (2010).

[8] Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).

[9] BEHAVIORAL ADDICTIONS AND THE LAW, 84 S. Cal. L. Rev. 161, 180-181 (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999)).

[10] Id. (citing ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553, §2(a)(4) (codified in scattered sections of 28 and 42 U.S.C.).

[11] ADA Amendments Act § 3(4)(A).

[12] Howard J. Shaffer, The Most Important Unresolved Issue in the Addictions: Conceptual Chaos, 32 Substance Use & Misuse 1573, 1574 (1997).

[13] Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev. 2000).

[14] BEHAVIORAL ADDICTIONS AND THE LAW, supra note 9, at 165.

[15] Id.

[16] Nathanael J. McKeown & Patrick L. West, Withdrawal Syndromes, eMedicine, (last updated Aug. 12, 2016).

[17] Hanan Frenk & Reuven Dar, A Critique of Nicotine Addiction 30-32 (2000); Shaffer, supra note 7, at 1577 (“It is the relationship of the addicted person with the object of their excessive behavior that defines addiction.”).

[18] See, e.g., Isaac Marks, Behavioural (Non-Chemical) Addictions, 85 Brit. J. Addiction 1389, 1389 (1990).

[19] Anita Everett, Can You be Addicted to the Internet?, American Psychiatric Association (Jul. 20, 2016)

[20] See Jerald J. Block, Issues for DSM-V: Internet Addiction, 165 Am. J. Psychiatry 306, 306 (2008).

[21] Id.

[22] Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009).

[23] Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 74 Fed. Reg. at 48,441.

[24] See Pacenza v. IBM Corp., No. 04 Civ. 5831 (PGG), 2009 U.S. Dist. LEXIS 29778, at 2 (S.D.N.Y. Apr. 2, 2009).

[25] Id.

[26] Id. at 9, 17.

[27] Id. at 30.

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