Law Commons^™

Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley

Faculty Scholarship

Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs’ benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules in comparative negligence for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a …

Is The Future Of Law A Driverless Car? Assessing How The Data Analytics Revolution Will Transform Legal Practice, Eric L. Talley

Faculty Scholarship

Machine learning and artificial intelligence technologies (“data analytics”) are quickly transforming research and practice in law, raising questions of whether the law can survive as a vibrant profession for natural persons to enter. In this article, I argue that data analytics approaches are overwhelmingly likely to continue to penetrate law, even in domains that have heretofore been dominated by human decision makers. As a vehicle for demonstrating this claim, I describe an extended example of using machine learning to identify and categorize fiduciary duty waiver provisions in publicly disclosed corporate documents. Notwithstanding the power of machine learning techniques, however, I …

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Fmri And Lie Detection, Anthony D. Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Some studies have reported the ability to detect lies, with a high degree of accuracy, by analyzing brain data acquired using functional magnetic resonance imaging (fMRI). But is this new technology ready for its day in court?

This consensus knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience takes a closer look at the potential and pitfalls of fMRI lie detection techniques, providing insight into the areas of the brain involved in lying, the impact of memory on deception, how countermeasures may foil our efforts to detect lies, and factors that can create cause for concern about …

A Machine Learning Classifier For Corporate Opportunity Waivers, Gabriel V. Rauterberg, Eric L. Talley

Faculty Scholarship

Rauterberg & Talley (2017) develop a data set of “corporate opportunity waivers” (COWs) – significant contractual modifications of fiduciary duties – sampled from SEC filings. Part of their analysis utilizes a machine learning (ML) classifier to extend their data set beyond the hand-coded sample. Because the ML approach is likely unfamiliar to some readers, and in the light of its great potential across other areas of law and finance research, this note explains the basic components using a simple example, and it demonstrates strategies for calibrating and evaluating the classifier.

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

Justice Policy Reform For High-Risk Juveniles: Using Science To Achieve Large-Scale Crime Reduction, Jennifer L. Skeem, Elizabeth S. Scott, Edward Mulvey

Faculty Scholarship

After a distinctly punitive era, a period of remarkable reform in juvenile crime regulation has begun. Practical urgency has fueled interest in both crime reduction and research on the prediction and malleability of criminal behavior. In this rapidly changing context, high-risk youth – the small proportion of the population where crime is concentrated – present a conundrum. Research indicates that these are precisely the individuals to intensively treat to maximize crime reduction, but there are both real and imagined barriers to doing so. Institutional placement or criminal court processing can exclude these youths from interventions that would better protect public …

Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Lethal autonomous machines will inevitably enter the future battlefield – but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect one’s own personnel and civilian persons and property will demand continuing research, development, and …

Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss

Faculty Scholarship

Written for a forthcoming book on e-governance and e-democracy, this essay summarizes the current state of play in electronic rulemaking in the United States. It thus focuses on a context in which the use of electronic consultation by “executive branch” actors engaged in policy-making has been developing for over a decade, and has reached a point of considerable, although not final maturity. Initially developed haphazardly, agency-by-agency, it is now (albeit with friction in the gears) moving towards a centralized regime. The practice is rarely consultative in the full sense the book as a whole will address; while the public is …

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.