Law Commons^™

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

Big Tech Becomes Psychic: The End Of Personal Autonomy, Zachary Williams

Journal of Law, Technology, & the Internet

Individual choice is being threatened. Private companies already held the ability to nudge consumer choices with targeted advertising. Now, with the rise in data collection and the innovation of technology and machine learning, companies are beginning to garner the ability to entirely manipulate them. Major companies can create a psychographic profile of any user using copious amounts of data collected and stored in what is essentially a library of information on each user. With access to personal or sensitive data from multiple digital markets, the profile could not only correctly identify not only a user’s likes and dislikes, but even …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Ethics Of Innovation: A Framework For Responsible Innovation Governance, Nicole Morris

SMU Science and Technology Law Review

Over the past several years, startups that once seemed destined for greatness have failed or collapsed because of fraud committed by the founders. Most notable are the Theranos and FTX business collapses, which culminated in the convictions of two infamous entrepreneurs, Elizabeth Holmes and Sam Bankman-Fired, respectively. Startup innovators are not alone when it comes to morally dubious behavior. According to Retraction Watch, nearly 5000 papers published in science & engineering journals were retracted in 2022. Research misconduct allegations eventually led to the resignation of Stanford University President Marc Tessier-Lavigne in July 2023. The research scandal at Stanford received lots …

Liability Rules For Automated Vehicles: Definitions And Details, William H. Widen, Philip Koopman

SMU Science and Technology Law Review

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

The Fall Of Z-Library: The “Burning Of The Library Of Alexandria” Or Protection For Authors Against Ai Companies, Lisa Silveira

SMU Science and Technology Law Review

The development and advancement of artificial intelligence (“AI”) is changing the way we use technology while creating an ongoing battle between media and technology companies. With AI companies gathering data from the internet to train programs like ChatGPT, authors have growing concerns about unpermitted use of their work when pirated copies of their books exist illegally online through shadow libraries. This article examines the popular shadow library known as Z-Library and the views of its proponents and opponents. In addition, this article will discuss the training process AI companies use and the data sets containing content from shadow libraries. While …

The Game-Changer: Legal Issues Surrounding Wearable Technology In Sports, Jack Vande Berg

SMU Science and Technology Law Review

Athletes and teams are always seeking to gain a competitive edge, and the emergence of wearable technology has provided them with biometric data that provides new insights into performance. The market for wearable technology has been growing at a rapid pace in recent years and is projected to continue on an upward trajectory through the end of the decade. Governing bodies of sport at a professional and amateur level have adapted regulations for the use of this new technology and the data it produces. This article provides an overview of these current regulations, and then discusses three pressing legal issues. …

Trademark Infringement: The Likelihood Of Confusion Of Nfts In The Us And Eu, Sara Sachs

Brooklyn Journal of International Law

The immutability of non-fungible tokens has made it an invaluable tool for asset ownership and authentication across a variety of industries. With the proliferation of NFTs comes the need to protect trademarks and prevent consumer confusion in the digital age. This Note explores the existing legal framework for trademark law in the United States and European Union. This Note argues for a new trademark standard that reflects the interconnected nature of a global digital society.

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

Byte A Carrot For Change: Uprooting Problems In Data Privacy Regulations, Sarah Terry

BYU Law Review

There is a growing gap between technology advancement and a lagging regulatory system. This is particularly problematic in consumer data privacy regulating. Companies hold collected consumer data and determine its use largely without accountability. As a result, ethical questions that carry society-shaping impact are answered in-house, under the influence of groupthink, and are withheld from anyone else weighing in.

This Note poses a solution that would address multiple data privacy regulation issues. Namely, an incentive approach would help even out the information-imbalanced system. Incentives are used as tools throughout intellectual property law to foster commercial progress, discourage trade secrets, and …

Fintech Lending In India: Taking Stock Of Implications For Privacy And Autonomy, Vidushi Marda, Amber Sinha

Indian Journal of Law and Technology

In the last five years, the Fintech sector has thrived in India, with Machine Learning (ML) driven credit scoring based on alternative data, emerging as a growing segment. The credit scoring industry in India needs to be viewed in light of a careful examination of rights, inclusion, appropriate safeguards and discrimination, currently missing from the discourse and practices. In this paper, we explain how ML-based credit scoring works, and the regulatory and commercial factors that have enabled and impeded its growth in India. Through legal and technological analysis, richened by insights from qualitative interviews with entrepreneurs and practitioners, we provide …

The Present And Future Of Ai Usage In The Banking And Financial Decision-Making Processes Within The Developing Indian Economy, Dr. Shouvik Kumar Guha, Bash Savage-Mansary, Dr. Navyajyoti Samanta

Indian Journal of Law and Technology

In course of this paper, the authors have soght to examine the extent to which technology based on artificial intelligence (AI) have made inroads into the banking and financial sectors of a developing economy like India. The paper begins with providing a contextual background to the adoption of such technology in the global financial arena. It then proceeds to identify and categorise the forms of AI currently being used in the Indian financial sector and also considers the different channels of operation where such technology is in vogue. The advantages of using such technology and the future goals for integrating …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 2), Jay T. Conrad

Seattle Journal of Technology, Environmental, & Innovation Law

This Article is the second of a two-part series about an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 detailed Internet shutdown tactics and potential human rights violations that could result from a shutdown. Now, Part 2 addresses the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this proposed solution, the harms of Internet shutdowns are better addressed through traditional legal avenues, such as bringing claims against the sanctioning state.

Part 1 can be found in The Seattle Journal of Technology, Environmental & …

Assessing The Potential Involutionary Effects Of New Copyright Laws: A Techno-Legal Analysis Based On The Impact Of Web 3.0 On Copyright Protection, Alvin Hung

Seattle Journal of Technology, Environmental, & Innovation Law

As Internet technology evolves, legal professionals and academics must stay current and adapt to these inevitable technological changes. This article investigates the extensive influence of the latest version of the World Wide Web (the Web)—Web 3.0—on copyright laws based on a techno-legal analysis that considers the opportunities and challenges of this new technology. The principal version of copyright laws, the Digital Millennium Copyright Act (DMCA), was enacted in 1998 during the Web 1.0 era, signifying an impending need for appropriate updates in the new Web 3.0 era. This article traces the historical development of U.S. copyright laws by positing it …

The Immutable Blockchain Confronts The Unstoppable Gdpr, Bisma Shoaib

Seattle Journal of Technology, Environmental, & Innovation Law

The notion that privacy is dispensable and should be sacrificed in exchange for internet access is misguided. In fact, privacy laws are flourishing, highlighting the significance of safeguarding personal information in the digital age. It is crucial to recognize that privacy is not merely a luxury, but a fundamental right that should be upheld, even in the context of online activities. In the ever-evolving landscape of technology, the collision between privacy and innovation becomes increasingly apparent. This paper delves into the intriguing convergence of the General Data Protection Regulation (GDPR) and blockchain technology, unraveling pivotal issues that arise from this …

“Vr”: Virtual Reality, Or Very Risky? Injuries And Liability From Virtual Reality Headsets, Andrew Stein

Seattle Journal of Technology, Environmental, & Innovation Law

No abstract provided.

Rise Of The Machines: The Future Of Intellectual Property Rights In The Age Of Artificial Intelligence, Sofia Vescovo

Brooklyn Law Review

Artificial intelligence (AI) is not new to generating outputs considered suitable for intellectual property (IP) protection. However, recent technological advancements have made it possible for AI to transform from a mere tool used to assist in developing IP to the mind behind novel artistic works and inventions. One particular AI, DABUS, has done just so. Yet, while technology has advanced, IP law has not. This note sets out to provide a solution to the legal concerns raised by AI in IP law, specifically in the context of AI authorship and inventorship. The DABUS test case offers a model framework for …