Law Commons^™

Critical Data Theory, Margaret Hu

William & Mary Law Review

Critical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in …

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany C. Lee

William & Mary Law Review

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Smart Wearables: The Overlooked And Underrated Essential Worker, Rebekah Hill

William & Mary Law Review

This Note argues that the FDA should revamp its criteria for regulating medical devices to unambiguously include smart wearables. Specifically, this Note calls for the FDA to amend its definition of “medical device” to focus on what a device is technologically capable of rather than its intended use.

Part I will examine the established legislation regarding medical devices; in particular, it will examine the relationship between FDA regulations and the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and argue that when taken together, HIPAA creates a strong presumption that smart wearables should be regulated by the FDA. This …

Emerging Technology's Language Wars: Cryptocurrency, Carla L. Reyes

William & Mary Law Review

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

Making Virtual Things, Joshua A.T. Fairfield

William & Mary Law Review

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Digital Asset Regulation: Peering Into The Past, Peering Into The Future, Kevin Werbach

William & Mary Law Review

Blockchain is often compared to the internet as a disruptive technology that will realign economic structures across the world. This analogy extends to law and regulation. Similar to internet-based services, digital assets raise a host of challenges for policymakers. They also pose general questions regarding the desirability and practicality of regulating decentralized systems. Such debates play out against a backdrop of concerns that regulatory action will chill innovation or push market activity to more tolerant jurisdictions. The story of internet policy in the late 1990s and early 2000s therefore provides important lessons for policymakers today when confronting digital assets. Two …

Blockchain Real Estate And Nfts, Juliet M. Moringiello, Christopher K. Odinet

William & Mary Law Review

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized …

Implied Organizations And Technological Governance, Shawn Bayern

William & Mary Law Review

Common law historically adapted creatively and gracefully to the emergence of new types of organizations. Today, statutory forms of organizations predominate. But statutory organizational forms may be ill-suited to govern the novel, loosely coupled, and rapidly changing organizations that can arise through distributed technological mechanisms. This Article suggests that the common law of implied organizations can be a fertile ground for legal responses to technological organizations and indeed may be important not just for regulating such organizations but for giving them important legal capabilities.

Defi: Shadow Banking 2.0?, Hilary J. Allen

William & Mary Law Review

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still has not fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we are already facing the prospect of Shadow Banking 2.0 in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph—but money is not the same as a photograph. The …

Blockchains As Infrastructure And Semicommons, James Grimmelmann, A. Jason Windawi

William & Mary Law Review

Blockchains are not self-executing machines. They are resource systems designed by people, maintained by people, and governed by people. Their technical protocols help to solve some difficult problems in shared resource management, but behind those protocols there are always communities of people struggling with familiar challenges in governing their provision and use of common infrastructure.

In this Article, we describe blockchains as shared, distributed transactional ledgers using two frameworks from commons theory. Brett Frischmann’s theory of infrastructure provides an external view, showing how blockchains provide useful, generic infrastructure for recording transactions and why that infrastructure is most naturally made available …

Regulating Crypto, On And Off The Chain, Eric D. Chason

William & Mary Law Review

Cryptocurrency had its most turbulent year in 2022. The collapse of TerraUSD ushered in a broad market decline, and the FTX debacle brought new publicity and scrutiny to crypto’s woes. Both events will likely spark new regulation and legislation.

Policymakers and regulators should regulate market structures like exchanges. While many cryptocurrencies are extremely transparent and require little if any additional disclosures, others are plagued by serious informational asymmetries. An exchange might allow participants to trade Bitcoin, and regulators need to protect investors who rely on such exchanges. Investors may face informational asymmetries regarding the operation and safety of the exchange. …

Judging Patents, Sapna Kumar

William & Mary Law Review

Patent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with …

Genetic Duties, Jessica L. Roberts, Alexandra L. Foulkes

William & Mary Law Review

Most of our genetic information does not change, yet the results of our genetic tests might. Labs reclassify genetic variants in response to advances in genetic science. As a result, a person who took a test in 2010 could take the same test with the same lab in 2020 and get a different result. However, no legal duty requires labs or physicians to inform patients when a lab reclassifies a variant, even if the reclassification communicates clinically actionable information. This Article considers the need for such duties and their potential challenges. In so doing, it offers much-needed guidance to physicians …

No-Fault Digital Platform Monopolization, Marina Lao

William & Mary Law Review

The power of today’s tech giants has prompted calls for changes in antitrust law and policy which, for decades, has been exceedingly permissive in merger enforcement and in constraining dominant firm conduct. Economically, the fear is that the largest digital platforms are so dominant and its data advantage so substantial that competition is foreclosed, resulting in long-term harm to consumers and to the economy. But the concerns extend beyond economics. Critics worry, too, that the large platforms’ tremendous economic power poses risks of social and political harm and threatens our democracy. These concerns have prompted discussions of ways to reinvigorate …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Compensation At The Crossroads: Autonomous Vehicles & Alternative Victim Compensation Schemes, Tracy Hresko Pearl

William & Mary Law Review

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet wellsuited to handle.

Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently impacts (a) whether manufacturers can afford to produce these vehicles or whether …

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West

William & Mary Law Review

No abstract provided.

Forcing Players To Walk The Plank: Why End User License Agreements Improperly Control Players’ Rights Regarding Microtransactions In Video Games, Chelsea King

William & Mary Law Review

No abstract provided.

Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold

William & Mary Law Review

No abstract provided.

Don’T Text A Driver: Civil Liability Of Remote Third-Party Texters After Kubert V. Best, Emily K. Strider

William & Mary Law Review

No abstract provided.

Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer

William & Mary Law Review

No abstract provided.

Transparency Trumps Technology: Reconciling Open Meeting Laws With Modern Technology, Cassandra B. Roeder

William & Mary Law Review

No abstract provided.

What To Do With Daubert: How To Bring Standards Of Reliable Scientific Evidence To The National Vaccine Injury Compensation Program, Brandon L. Boxler

William & Mary Law Review

No abstract provided.

Designing Non-National Systems: The Case Of The Uniform Domain Name Dispute Resolution Policy, Laurence R. Helfer, Graeme B. Dinwoodie

William & Mary Law Review

No abstract provided.

Internet Contacts And Forum Notice: A Formula For Personal Jurisdiction, Darren L. Mccarty

William & Mary Law Review

No abstract provided.

Essay On The Mechanics Of Drug Testing, Carlton E. Turner

William & Mary Law Review

No abstract provided.

Computer Crime In Virginia: A Critical Examination Of The Criminal Offenses In The Virginia Computer Crimes Act, Robin K. Kutz

William & Mary Law Review

No abstract provided.

Scientific Evidence - An Introduction, Fredric I. Lederer

William & Mary Law Review

No abstract provided.

Computer Programs In Government Procurement, Earl Levy

William & Mary Law Review

No abstract provided.