Law Commons^™

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

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Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

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

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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 …

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

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In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

Assessing Automated Administration, Cary Coglianese, Alicia Lai

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To fulfill their responsibilities, governments rely on administrators and employees who, simply because they are human, are prone to individual and group decision-making errors. These errors have at times produced both major tragedies and minor inefficiencies. One potential strategy for overcoming cognitive limitations and group fallibilities is to invest in artificial intelligence (AI) tools that allow for the automation of governmental tasks, thereby reducing reliance on human decision-making. Yet as much as AI tools show promise for improving public administration, automation itself can fail or can generate controversy. Public administrators face the question of when exactly they should use automation. …

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

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New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

Addressing The Divisions In Antitrust Policy, Herbert J. Hovenkamp

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This is the text of an interview conducted in writing by Professor A. Douglas Melamed, Stanford Law School.

Privacy In The Age Of Contact Tracing: An Analysis Of Contact Tracing Apps In Different Statutory And Disease Frameworks, Christopher S. Yoo, Apratim Vidyarthi

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The Covid-19 pandemic is a historic pandemic that has affected the lives of virtually everyone on the globe. One approach to slowing the spread of the disease is to use contact tracing, facilitated by our internet-connected smartphones. Different nations and states have partnered to develop a variety of contact tracing apps that use different technologies and architectures.

This paper investigates how five contact tracing apps—Germany’s Corona-Warn-App, Israel’s HaMagen, North Dakota’s Care19 Diary and Alert apps, and India’s Aarogya Setu—fare in privacy-oriented statutory frameworks to understand the design choices and public health implications shaped by these statutes. The three statutes—the Health …

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

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Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Did The America Invents Act Change University Technology Transfer?, Cynthia L. Dahl

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University technology transfer offices (TTOs) are the gatekeepers to groundbreaking innovations sparked in research laboratories around the U.S. With a business model reliant on patenting and licensing out for commercialization, TTOs were positioned for upheaval when the America Invents Act (AIA) transformed U.S. patent law in 2011. Now almost ten years later, this article examines the AIA’s actual effects on this patent-centric industry. It focuses on the five key areas of most interest to TTOs: i) first to file priority; ii) broadening of the universe of prior art; iii) carve-out to the prior commercial use defense; iv) micro-entity fees; and …

Administrative Law In The Automated State, Cary Coglianese

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In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated state were …

Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo

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Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the …

Network Effects In Action, Christopher S. Yoo

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This Chapter begins by examining and exploring the theoretical and empirical limits of the possible bases of network effects, paying particular attention to the most commonly cited framework known as Metcalfe’s Law. It continues by exploring the concept of network externalities, defined as the positive external consumption benefits that the decision to join a network creates for the other members of the network, which is more ambiguous than commonly realized. It then reviews the structural factors needed for models based on network effects to have anticompetitive effects and identifies other factors that can dissipate those effects. Finally, it identifies alternative …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell

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Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software …

When Standards Collide With Intellectual Property: Teaching About Standard Setting Organizations, Technology, And Microsoft V. Motorola, Cynthia L. Dahl

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Technology lawyers, intellectual property (IP) lawyers, or even any corporate lawyer with technology clients must understand standard essential patents (SEPs) and how their licensing works to effectively counsel their clients. Whether the client’s technology is adopted into a voluntary standard or not may be the most important factor in determining whether the company succeeds or is left behind in the market. Yet even though understanding SEPs is critical to a technology or IP practice, voluntary standards and specifically SEPs are generally not taught in law school.

This article aims to address this deficiency and create more practice-ready law school graduates. …

An Essay On Pluralism In Financial Market Infrastructure Design: The Case Of Securities Holding In The United States, Charles W. Mooney Jr.

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This essay will appear as a chapter in a forthcoming edited volume published by Oxford University Press. It builds on the earlier article, Beyond Intermediation: A New (FinTech) Model for Securities Holding Infrastructures, 22 U. Pa. J. Bus. L. 386 (2020), which argues that serious consideration should be given to modifications of the deeply intermediated securities holding systems in the United States and elsewhere. Many of the costs and risks imposed by the intermediated holding systems fall within the domain of the regulation of securities markets (internal costs), such as impairments of shareholder voting and bondholder claims against issuers. …

Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai

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Policymakers in the United States have just begun to address regulation of artificial intelligence technologies in recent years, gaining momentum through calls for additional research funding, piece-meal guidance, proposals, and legislation at all levels of government. This Article provides an overview of high-level federal initiatives for general artificial intelligence (AI) applications set forth by the U.S. president and responding agencies, early indications from the incoming Biden Administration, targeted federal initiatives for sector-specific AI applications, pending federal legislative proposals, and state and local initiatives. The regulation of the algorithmic ecosystem will continue to evolve as the United States continues to search …

Reviewing Inter Partes Review Five Years In: The View From University Technology Transfer Offices, Cynthia L. Dahl

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With the implementation of the inter partes review (IPR) proceeding under the America Invents Act in 2012, university technology transfer offices (TTOS) were worried that the value of their patents might be irreparably harmed. With IPR proceedings making patent challenges easy, relatively inexpensive, and a threat extending over the lifetime of a patent, TTOs wondered if IPRs might do nothing short of undermining their licensing business model.

However, although IPRs have irreparably changed the patent infringement landscape outside of the university setting, the effect on university patents has not been nearly as severe. This chapter explores why that might be …

Beyond Intermediation: A New (Fintech) Model For Securities Holding Infrastructures, Charles W. Mooney Jr.

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Publicly traded securities generally are held by investors in securities accounts with intermediaries such as stockbrokers and central securities depositories—intermediated securities. For many investors this is the only practical means of holding and dealing with securities. These intermediated holding systems (IHSs) impose a variety of risks and costs. Investors are exposed to intermediary risk (default or insolvency of an intermediary holding securities) as well as impediments to the exercise of rights such as voting and asserting claims against securities issuers. The nontransparency of IHSs imposes other social costs, such as obstacles to anti-money laundering enforcement. The emergence of FinTech and …

Frand And Antitrust, Herbert J. Hovenkamp

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This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role is to …

Redefining Leadership In The Age Of The Sdgs: Accelerating And Scaling Up Delivery Through Innovation And Inclusion, Phumzile Mlambo-Ngcuka, Rangita De Silva De Alwis

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In 2015 the United Nations adopted seventeen Sustainable Development Goals (SDGs) to promote prosperity while protecting the environment. Our research examines how the SDGs, considered the grandest vision for sustainable development for the world, can be accelerated by ambitious leaders in the field of innovation. Through careful selection based on the type of industry, scale, impact, and diversity, we study a cohort of bold leaders who are shaping a brave new world. In turn, the urgent charge of the SDGs provides a platform and an innovation lab to incubate new ideas for inclusion and technologies.

Algorithms And Human Freedom, Richard Warner, Robert Sloan

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Predictive analytics such as data mining, machine learning, and artificial intelligence drive algorithmic decision making. Its "all-encompassing scope already reaches the very heart of a functioning society". Unfortunately, the legal system and its various tools developed around human decisionmakers cannot adequately administer accountability mechanisms for computer decision making. Antiquated approaches require modernization to bridge the gap between governing human decision making and new technologies. We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to incorrect, unjustified, or unfair outcomes? Second, how should one regulate those features to make outcomes more …

The Internet Adopts Two-Way Radio, Henry Perritt

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The Internet, having displaced conventional correspondence with email, having displaced traditional libraries with online ones, having revolutionized shopping, having uprooted television and movies, now is absorbing police, fire, ambulance, and public utility two-radio systems.Digital radio technologies combine with Internet switching of transmitters, receivers, and networks, so that a police officer can talk to an ambulance driver or a train dispatcher across the state or across the country. Specialized cellphones are becoming indistinguishable from walkie-talkies. Cellular telephone channels replace two-way-radio air links.Integration of “private mobile radio” into the Internet is the result of specific advances in radio and networking technology that …

Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman

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This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights, …

Coin-Operated Capitalism, Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, David A. Wishnick

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This Article presents the legal literature’s first detailed analysis of the inner workings of Initial Coin Offerings. We characterize the ICO as an example of financial innovation, placing it in kinship with venture capital contracting, asset securitization, and (obviously) the IPO. We also take the form seriously as an example of technological innovation, where promoters are beginning to effectuate their promises to investors through computer code, rather than traditional contract. To understand the dynamics of this shift, we first collect contracts, “white papers,” and other contract-like documents for the fifty top-grossing ICOs of 2017. We then analyze how such projects’ …

5g And Net Neutrality, Christopher S. Yoo, Jesse Lambert

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Industry observers have raised the possibility that European network neutrality regulations may obstruct the deployment of 5G. To assess those claims, this Chapter describes the key technologies likely to be incorporated into 5G, including millimeter wave band radios, massive multiple input/multiple output (MIMO), ultra-densification, multiple radio access technologies (multi-RAT), and support for device-to-device (D2D) and machine-to-machine (M2M) connectivity. It then reviews the business models likely to be associated with 5G, including network management through biasing and blanking, an emphasis on business-to-business (B2B) communications, and network function virtualization/network slicing. It then lays out the network neutrality regulations created by the EU …

Transparency And Algorithmic Governance, Cary Coglianese, David Lehr

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Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a …

Back To The Future Of Cyber Insurance, Tom Baker

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Written for an insurance trade publication, this brief essay identifies five ways that insurers manage uncertainty in selling cyber insurance: (1) providing valuable services beyond risk transfer; (2) contract design, (3) rapid iteration of pricing and forms, (4) limits management and reinsurance, and (5) claims disputing. Cyber insurers provide easy-to-price loss prevention and mitigation services so that the value proposition includes more than the (difficult to price) risk transfer. Cyber insurers design their contracts to include narrowly defined categories of coverage, typically with separate limits and with claims-made coverage for liability risks, and traditional insurers design their contracts to limit …

The Vaccine Race In The 21st Century, Ana Santos Rutschman

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In a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but less attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines.

This Article explores the race to develop new vaccines from its beginnings through the early 21st century, with a particular focus on the progressively pervasive role of intellectual property in governing vaccine innovation. It describes the insufficiencies of current innovation regimes in promoting …

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

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This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.

In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer E. Rothman

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Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to …