Law Commons^™

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye

Pepperdine Law Review

Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …

Law School News: Rwu Alumni Named To Pbn's 2023 40 Under Forty List 7/5/2023, Stacey Pacheco

Life of the Law School (1993- )

No abstract provided.

Racializing Algorithms, Jessica M. Eaglin

Articles by Maurer Faculty

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It …

Telehealth Fraud And Abuse Before And “After” The Pandemic: Are Things Going To Get Better?, Natalia Shamuel

DePaul Journal of Health Care Law

Telehealth and telemedicine have become increasingly useful to both patients and health care providers. The ease and comfort of attending a doctor’s appointment in the comfort of one’s own home made telehealth and telemedicine convenient, safe, and effective options for seeing a doctor during the height of the COVID-19 pandemic. However, with increased usage of telehealth and telemedicine came increased health care fraud and abuse. With increased health care fraud and abuse came increased regulations, both on the federal and state levels. This Note provides a brief analysis of health care fraud and abuse in the telehealth and telemedicine space. …

Thaler V. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), Matthew Messina

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Montana Is Trying To Ban Tiktok. What Does The First Amendment Have To Say?, Deborah Pearlstein, John Dellamore

Online Publications

Last month, Montana became the first U.S. state to pass a bill banning TikTok from operating within its borders. If Governor Greg Gianforte signs some version of the bill, it will become the first statewide ban in the country to take direct aim at the popular social media app, which various U.S. government officials have warned poses a serious national security threat. But while Montana may be the first to act, significant gaps remain in the public debate surrounding both the nature of the threat that TikTok presents, and the constitutional questions that trying to regulate it might create.

Dystopian Trademark Revelations, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Uncovering dystopian technologies is challenging. Nondisclosure agreements, procurement policies, trade secrets, and strategic obfuscation collude to shield the development and deployment of these technologies from public scrutiny until it is too late to combat them with law or policy. But occasionally, exposing dystopian technologies is simple. Corporations choose technology trademarks inspired by dystopian philosophies and novels or similar elements of real life—all warnings that their potential uses are dystopian as well. That pronouncement is not necessarily trumpeted on social media or corporate websites, however. It is revealed in a more surprising place: trademark registrations at the U.S. Patent and Trademark …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena

ConLawNOW

This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding …

Startup Biases, Jennifer S. Fan

Articles

This Article provides an original descriptive account of bias in the startup context and explains why litigation is eschewed and what happens when it is used as a mechanism to combat bias in the venture capital ecosystem. Further, this Article identifies two particular phenomena in the startup context that exacerbate gender and racial bias. First, homophily—the idea that like attracts like—abounds and has been part of the DNA of venture capital since its inception. The thick networks that developed as venture capital made its way from the East Coast to the West Coast were limited to an elite group that …

Oh No, Another Chatgpt Post: Incorporating Ai-Powered Chatbots Into Legal Research Exercises And Assignments, Olivia R. Smith Schlinck

Library Staff Online Publications

Since it was launched at the end of November 2022, the discourse around ChatGPT and AI search tools has been unrelenting. What impact will AI-powered chatbots have on education? Will students submit ChatGPT-written essays and homework assignments? Will AI make lawyers obsolete? Look, this chatbot just passed the bar exam! Wait a minute—is this thing. . . sentient?

The Lawyer's Duty Of Tech Competence Post-Covid: Why Georgia Needs A New Professional Rule Now—More Than Ever, Julia Webb

Georgia State University Law Review

The American Bar Association (ABA) promulgates the Model Rules for Professional Conduct (Model Rules), which prescribe the behavior with which lawyers must comply in demonstrating competency to practice law. In 2012, the ABA updated Comment 8 to Model Rule 1.1 to require maintaining competence in the “benefits and risks associated with relevant technology,” also known as a lawyer’s “duty of technological competence.” A decade later, the majority of state bar associations have adopted and implemented this language. Georgia, however, remains among the last ten states that have not yet formally adopted the duty of technological competence. The COVID-19 pandemic forced …

Disability Law—From Stair Flights To Websites: An Argument For Amending The Americans With Disabilities Act To Include Title Vi That Applies To Online Spaces, Amelia Hansel

University of Arkansas at Little Rock Law Review

No abstract provided.

Data Localization And Government Access To Data Stored Abroad: Discussion Paper 2, Shanzay Pervaiz, Alex Joel

Joint PIJIP/TLS Research Paper Series

The Centre for Information Policy Leadership (CIPL) and Tech, Law & Security Program (TLS) have been collaborating on a project regarding data localization policies. As data localization is increasingly gaining traction, we seek to understand the different dimensions of the impacts and effectiveness of these policies. As part of this collaboration—CIPL published a paper on the “real life” business, societal, and consumer impacts of data localization policies and TLS published the present paper on whether data localization measures are legally effective in achieving one of their main ostensible purposes, i.e., to prevent foreign government access to data.

Lisp – An Historical Reminiscence, Heather Simmons

Articles, Chapters and Online Publications

Reflections on the history of the Legal Information Services to the Public group of the American Association of Law Libraries.

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

University of Miami Law Review

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Standing Up To Hackers: Article Iii Standing For Victims Of Data Breaches, Kendall Coffey

University of Miami Law Review

Despite the increasing amount of data breaches, there is no liability for parties who do not adequately protect victim’s information. In federal court, plaintiffs must show that their injury was concrete, particularized, and imminent. But, when plaintiffs’ information has been stolen, but not yet criminally used, they may be unable to establish a right to relief. Victims face challenges when seeking damage for this future harm, because despite their destroyed privacy, they may not have evidence of a perpetrator’s actual misuse of purloined data. This Article analyzes multiple court decisions, generally in the setting of class-actions, and discusses outcomes of …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

Head In The Bitcloud: A Discussion On The Copyrightability And Ownership Rights In Generative Digital Art And Non-Fungible Tokens, Amanda J. Sharp

San Diego Law Review

This Comment discusses three major copyright questions raised by non-fungible tokens (NFTs) creation and distribution in the digital art world. First, how does employing AI in the creation of generative and derivative digital art and NFTs affect the copyright requirements of authorship? Second, who is the rightful owner of an NFT image pre- and post-purchase? Finally, how does the first sale doctrine apply to NFT image purchases and are those protections enough to resolve future copyright-specific NFT claims? In Part I, an introductory example is laid out to showcase the complex issues generative and derivative digital art and NFT images …

Regulatory Sandboxes Enable Pragmatic Blockchain Regulation, Joshua Durham

Washington Journal of Law, Technology & Arts

Since blockchain technology supports digitally-native money, the centralized chokepoints that governments have traditionally targeted to regulate commerce no longer apply to our (digital) property. However, competent regulation furthers basic public policy goals and should enable responsible innovation of this promising technology. This Article discusses pragmatic policies that enable responsible innovation by cultivating regulatory expertise required to write enforceable rules. Responsible innovation is necessary because unlike the early internet, where programmers could manipulate simple colors and text on webpages, these same individuals can now create financial services applications that manipulate actual money—we are faced with an inescapable reality that more is …

Hit The Road, Jack: The Auto Industry As The Next Vehicle For Predatory Infringement, Kristen Osenga

Law Faculty Publications

While patents, patent litigation, and patent pools have been part of the automotive industry since the late-1800s, the prevalence of technology covered by standards and accompanying standard essential patents (SEPs) is much more recent. Today’s smart cars and the widespread incorporation of telecommunication and Internet of Things standards in vehicles raise concerns about how well the automotive industry will be able to adapt to this new SEP-laden future. This article predicts that predatory infringement of SEPs for two related reasons. First, although some industries, such as telecommunications, have long dealt with SEPs, the incorporation of standardized technology is more recent …

Science, Technology, Society, And Law, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Traditionally, science and technology have been granted as sources of knowledge and objective truth. However, much more recently, they are also seen as human activities, conducted in a social environment. This new approach focuses on the intersections between science, technology and society, and particularly their regulation by the law. Concerns on how to best regulate the interaction come up in modern societies, and when either their use or their impacts are global, international law and international organizations become involved. The impact of the fourfold relation is so high that science and technology are seen as one of the reasons for …

The Interlinkages Science-Technology-Law: Information And Communication Society, Knowledge-Based Economy And The Rule Of Law, Giovanni Bombelli, Paolo Davide Farah

Book Chapters

This chapter focuses on the circular and complex relationship between science, technology, society, and law. The technology/society connection focuses on the democratic deficit issue. The democratic deficit would be a consequence of the lack of adaptability of western democracy to complex (information) societies, where technology (and the increasing access to data that it permits) is separating the connection between information and knowledge (as well as the classical legitimacy couple of democracy-truth) moving these societies towards a technocracy. On one hand, the technology-law circle deals with the progressive reduction of law to a normative technique (since the law is always late …

Regulating The Use Of Military Human Enhancements That Can Cause Side Effects Under The Law Of Armed Conflict: Towards A Method-Based Approach, Yang Liu

American University National Security Law Brief

The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues.

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.

The Need For An Australian Regulatory Code For The Use Of Artificial Intelligence (Ai) In Military Application, Sascha-Dominik Dov Bachmann, Richard V. Grant

American University National Security Law Brief

Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of …

The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Different visions on the interaction between science, technology, policy and law have been presented. As common axe, we can detect the continuous search for truth and justice. Science and Law as social constructs, the distinction between truths and opinions through procedural method based on evidence and rationality, or how natural science “things” became facts, and consequently “truth”, are examples of this search. The evidence-gathering process that integrates scientific evidence into trial (sometimes by procedure and other times by a more substantive approach) is another possible approach. Of course, that the game of mutual influence among the four elements creates contradictions …