Law Commons^™

Governance Of Emerging Technologies As A Wicked Problem, Gary E. Marchant

Vanderbilt Law Review

Governance of emerging technologies . . . presents a conundrum. No single optimum solution exists, but rather a collection of second-best strategies intersect, coexist, and—in some ways—compete. This situation seems unsatisfactory until it is observed through the lens of the “wicked problem” framework. The wicked problem concept recognizes there is often no single, optimal solution to such a problem, but rather a mix of substandard solutions that must “satisfice.” That is the best that can be done with a wicked problem. This also may be the best solution for the governance-of-emerging-technologies problem.

This Article discusses the advantages of using the …

Watching Androids Dream Of Electric Sheep: Immersive Technology, Biometric Psychography, And The Law, Brittan Heller

Vanderbilt Journal of Entertainment & Technology Law

Virtual reality and augmented reality present exceedingly complex privacy issues because of the enhanced user experience and reality-based models. Unlike the issues presented by traditional gaming and social media, immersive technology poses inherent risks, which our legal understanding of biometrics and online harassment is simply not prepared to address. This Article offers five important contributions to this emerging space. It begins by introducing a new area of legal and policy inquiry raised by immersive technology called “biometric psychography.” Second, it explains how immersive technology works to a legal audience and defines concepts that are essential to understanding the risks that …

Grown From The Shadows: How Technology And Taxes Can Bring Private Companies Into The Public Light, Alon Sugarman

Vanderbilt Journal of Entertainment & Technology Law

The initial public offering (IPO) has started to make a comeback, but in forms that require less oversight and at a later point in a company’s lifecycle. These new trends cut main street investors out of early-stage corporate growth and have imperiled the fortunes and retirement funds of a generation. One of the most significant precipitating factors in this new dynamic is electronic private markets that allow sophisticated investors to trade pre-IPO shares. These electronic private markets provide liquidity to institutional investors, which relieves institutional pressure on companies to go public. The current approaches to IPO reform are primarily deregulatory, …

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

Vanderbilt Law Review

The U.S. Courts of Appeals were once admired for their wealth of judicial attention and for their generosity in distributing it. At least by legend, almost all cases were afforded what William Richman and William Reynolds have termed the “Learned Hand Treatment.” Guided by Judge Learned Hand’s commandment that “[t]hou shalt not ration justice,” a panel of three judges would read the briefs, hear oral argument, deliberate at length, and prepare multiple drafts of an opinion. Once finished, the judges would publish their opinion, binding themselves and their colleagues in accordance with the common-law tradition. The final opinion would be …

To Edit Or Not To Edit?--Regulating Crispr Transnationally, Ann Potter

Vanderbilt Journal of Transnational Law

After Chinese scientist Dr. He Jiankui's announcement that he had successfully edited the human genome using a new technology called CRISPR/Cas-9, Dr. He forced the world to address the ethical dilemmas introduced by gene-editing technologies. Born out of a historical tradition of human "improvement," gene-editing technologies like CRISPR/Cas-9 modify human genes down to DNA molecules. CRISPR can prevent and cure genetic diseases that have previously had no cure, but problems arise when CRISPR's use expands to enhancements or to modifications that would change the human genome permanently. Given CRISPR's potential profound impact, this Note analyzes how international bodies like the …

The Future Of The Confrontation Clause: Semiautonomous And Autonomous Machine Witnesses, Brian Sites

Vanderbilt Journal of Entertainment & Technology Law

How should the Confrontation Clause of the Sixth Amendment be interpreted as to machine witnesses? Courts across the country have resisted efforts to cross-examine the human agents who assist machines that generate data used in criminal trials. Such challenges under the Confrontation Clause have been rejected directly and in great number, and the rules of evidence are largely being read to not require the testimony of those who have the best information about the machine's use for the case at hand. This problem arises in an era of machine exceptionalism and widespread use. From increasingly sophisticated forensic lab tools to …

Predicting Variation In Endowment Effect Magnitudes, Owen D. Jones, C. Jaeger, S. Brosnan, D. Levin

Vanderbilt Law School Faculty Publications

Hundreds of studies demonstrate human cognitive biases that are both inconsistent with “rational” decisionmaking and puzzlingly patterned. One such bias, the “endowment effect” (also known as “reluctance to trade”), occurs when people instantly value an item they have just acquired at a much higher price than the maximum they would have paid to acquire it. This bias impedes a vast range of real-world transactions, making it important to understand. Prior studies have documented items that do or do not generate endowment effects, and have noted that the effects vary in magnitude. But none has predicted any of the substantial between-item …

Sandbox Boundaries, Hilary J. Allen

Vanderbilt Journal of Entertainment & Technology Law

Around the world, subnational and national regulatory sandboxes are being adopted in an effort to promote fintech innovation. These regulatory sandboxes seek to do so by rolling back some of the consumer protection and prudential regulations that would otherwise apply to firms trialing their financial products and services in the sandbox. While sacrificing such protections in order to promote innovation is problematic, such sacrifice may nonetheless be justifiable if, by working with innovators in the sandbox, regulators are educated about new technologies in a way that enhances their ability to effectively promote consumer protection and financial stability in other contexts. …

'Rifled Precision': Using E-Discovery Technology To Streamline Books And Records Litigation, Joshua A. Manning

Vanderbilt Journal of Entertainment & Technology Law

In 1993, the Delaware Supreme Court urged stockholders to use the "tools at hand" to flesh out complaints in derivative lawsuits. The plaintiffs' bar got the message. In the years since that proclamation, the Delaware Court of Chancery has seen dramatic increases in so-called Section 220 litigation-stockholders exercising their statutory right to inspect a company 's books and records. As Delaware courts have made it harder for stockholders to challenge merger transactions, this trend has only intensified. Due to increased filings, as well as other structural hurdles, these "summary proceedings" have begun to drag, with many requiring full trials. Because …

Beneficial Precaution: A Proposed Approach To Uncertain Technological Dangers, Edward L. Rubin

Vanderbilt Journal of Entertainment & Technology Law

As a result of the specialization and cumulation of knowledge in the era of High Modernity, research and development in most technical fields is largely incomprehensible to anyone outside that field. What should policy makers do when technical specialists disagree, and particularly when some predict an oncoming catastrophe and others dismiss the concern? This is the situation with the so-called Singularity, the point at which machines design, build, and operate other machines. Some experts in cybernetics and artificial intelligence argue that this is imminent, while others consign the possibility to science fiction. If the skeptics are right, nothing need be …

The Law Of The Tetrapods, Henry T. Greely

Vanderbilt Journal of Entertainment & Technology Law

Should there be such a thing as "Technology Law"? This Article explores that question in two ways. It first looks at four substantive issues that appear across many different areas of technology law: privacy, security, property, and responsibility. It then examines five questions that frequently recur about how to regulate very different new technologies. These questions include which agency should regulate, whether regulation should focus on before or after marketing, what jurisdiction should regulate, how relevant new information will be gained and used, and how-politically-good regulation can be enacted. This Article concludes that it may make sense to develop a …

Governing Cascade Failures In Complex Social-Ecological-Technological Systems: Framing Context, Strategies, And Challenges, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Cascade failures are events in networked systems with interconnected components in which failure of one or a few parts triggers the failure of other parts, which triggers the failure of more parts, and so on. Cascade failures occur in a wide variety of familiar systems, such as electric power distribution grids, transportation systems, financial systems, and ecosystems. Cascade failures have plagued society for centuries. However, modern social-ecological-technological systems (SETS) have become vast, fast moving, and highly interconnected, exposing these systems to cascade failures of potentially global proportions, spreading at breathtaking speed, and imposing catastrophic harms. The increasing potential for cascade …