Science and Technology Law Commons^™

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Vanderbilt Law School Faculty Publications

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …

Using An Evolutionary Approach To Improve Predictive Ability In Social Sciences: Property, The Endowment Effect, And Law, Owen D. Jones, Sarah F. Brosnan

Vanderbilt Law School Faculty Publications

From the perspective of other disciplines, evolutionary approaches more often provide explanation and coherence than they help to solve discrete problems. We believe that more examples of the latter sort will help both with disciplinary synthesis and with the advance of knowledge. Here we describe a 20-year arc of research to demonstrate the problem-solving utility of an evolutionary perspective by focusing, as a case study, on a particular cognitive bias – the endowment effect – that has implications for law. Legal systems often assume that humans make decisions that are substantively rational, consistent, and aimed at maximizing their own wellbeing. …

Legal Dispositionism And Artificially-Intelligent Attributions, Jerrold Soh

Research Collection Yong Pung How School Of Law

It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards …

Cryptocurrencies And Climate Change: A Net-Zero Paradox, Jason Maclean

Canadian Journal of Law and Technology

Cryptocurrencies pose a number of complex law and policy problems, the most pressing of which are the industry’s climate and environmental impacts. This article examines the climate and environmental impacts of crypto-assets in the broader law and policy context of the UN Paris Agreement and the global goal of reaching net-zero emissions by 2050 or earlier. This approach not only illuminates the limitations and paradoxical nature of the crypto-industry’s climate commitments, but also the limitations and paradoxical nature of ‘‘net zero” itself as the predominant framing of national, subnational, and nonstate actors’ climate pledges. The article concludes by examining the …

Gamesmanship In Modern Discovery Tech, Neel Guha, Peter Henderson, Diego A. Zambrano

Faculty Scholarship

This chapter explores the potential for gamesmanship in technology-assisted discovery. Attorneys have long embraced gamesmanship strategies in analog discovery, producing reams of irrelevant documents, delaying depositions, or interpreting requests in a hyper-technical manner. The new question, however, is whether machine learning technologies can transform gaming strategies. By now it is well known that technologies have reinvented the practice of civil litigation and, specifically, the extensive search for relevant documents in complex cases. Many sophisticated litigants use machine learning algorithms – under the umbrella of “Technology Assisted Review” (TAR) – to simplify the identification and production of relevant documents in discovery. …

Biotechnology Patent Law Top Ten Of 2021. Experimentation, Blaze Marks, And Unspecified Ranges, Noonan, Kevin E., Torrance, Andrew W.

Santa Clara High Technology Law Journal

Biotechnology has never demonstrated its benefits to society more than in 2021. The SARS-CoV-2 virus that caused the CoVID-19 pandemic met a formidable opponent in mRNA vaccines developed and supplied by Moderna and Pfizer/BioNTech. These vaccines are claimed in myriad – not Myriad – patents and patent applications, many of which are destined to be litigated over the coming years, not least inspired by the many billions of dollars that have been, and will continue to be, earned by their owners. While the world waits for this storm of patent litigation, federal courts continue to be busy with ownership, licensing, …

The Art World Of Digital Assets: How Non-Fungible Tokens Create A Loophole In Anti-Money Laundering Regulations, Sofia Aizenman

Cardozo Law Review

No abstract provided.

Copyright Throughout A Creative Ai Pipeline, Sancho Mccann

Canadian Journal of Law and Technology

Consider the following fact pattern.

Alex paints some original works on canvas and posts photos of them online. Becca downloads those images and uses them to train an AI (training configures the AI’s model parameters to useful values). Becca posts the resulting trained parameter values on her website under a license that reserves to Becca the right to use the parameters commercially. Cory uses those parameter values in a program that is designed to produce artwork. Cory clicks create and the program produces a work. This work is new to Cory, but it looks a lot like one of Alex’s …

Perceiving Critical Infrastructure With A New Awareness Of Cyber Risk, Duncad Card

Canadian Journal of Law and Technology

North America’s critical infrastructure has been the subject of cyber-attack, in various cycles of activity, for many years. In March of 2017, a cyber-attack caused periodic ‘‘blind-spots” for electricity distribution grid operators in the Western US for about 10 dangerous hours. In May of this year, there was panic at the gas pumps across many States in southeastern United States, which has been attributed to a cyber-attack on a major US pipeline that disrupted fuel supplies to the US East coast. US Commerce Secretary Raimondo soon after that attack announced that those sorts of attacks are becoming more frequent and …

Book Review Rethinking The Jurisprudence Of Cyberspace, David Cowan

Canadian Journal of Law and Technology

It is a common claim that law is always catching up with technology. This is not entirely fair. The European Union’s General Data Protection Regulation1 (GDPR) could be viewed as a case of technology having to catch up to the law. That said, clearly there are challenges in law and in the legal profession, both in terms of how the law can adapt to changes in the digital world and the disruption of the legal profession. On the former point, there are perhaps three broad schools of thought: existing law is sufficient for adapting to new technological challenges, as it …

Crispr, Like Any Other Technology: Shedding Determinism & Reviving Athens, Jon Khan

Canadian Journal of Law and Technology

This article examines current narratives surrounding CRISPR (clustered regularly interspaced short palindromic repeats) and the current Canadian treatment of this novel biotechnology. It argues that Canada’s current approach to genetic research and CRISPR appear to have succumbed to the false narrative of technological determinism. It argues that Canada must buck the narrative and alter the current status quo in two principal ways: Canada should pursue more somatic CRISPR clinical trials in humans and permit pre-clinical germline editing. To design a regulatory regime for clinical germline editing and better guidance on somatic CRISPR clinical trials, Canada should engage Deliberative Polling to …

Recognizing Operators’ Duties To Properly Select And Supervise Ai Agents – A (Better?) Tool For Algorithmic Accountability, Richard Zuroff

Canadian Journal of Law and Technology

In November of 2020, the Privacy Commissioner of Canada proposed creating GDPR-inspired rights for decision subjects and allowing financial penalties for violations of those rights. Shortly afterward, the proposal to create a right to an explanation for algorithmic decisions was incorporated into Bill C-11, the Digital Charter Implementation Act. This commentary proposes that creating duties for operators to properly select and supervise artificial agents would be a complementary, and potentially more effective, accountability mechanism than creating a right to an explanation. These duties would be a natural extension of employers’ duties to properly select and retain human employees. Allowing victims …

If A Machine Could Talk, We Would Not Understand It: Canadian Innovation And The Copyright Act’S Tpm Interoperability Framework, Anthony D. Rosborough

Canadian Journal of Law and Technology

This analysis examines the legal implications of technological protection measures (‘‘TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (‘‘OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s ‘‘shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: …

Harmful Speech And The Covid-19 Penumbra, Kenneth Grad, Amanda Turnbull

Canadian Journal of Law and Technology

We make two central claims in this essay. First, the themes of malinformation have remained remarkably consistent across pandemics. What has changed is only the manner of their spread through evolving technologies and globalization. Thus, as with pandemic preparedness more generally, our failure to take proactive measures reflects a failure to heed the lessons of the past. Second, we argue that the COVID-19 pandemic presents a unique opportunity to tackle online falsehoods and mitigate their impact in the future.

We proceed in three parts. Part one addresses the harmful speech that inevitably follows in pandemic’s wake. We illustrate this through …

The Adverse Human Rights Impacts Of Canadian Technology Companies: Reforming Export Control With The Introduction Of Mandatory Human Rights Due Diligence, Siena Anstis, Rj Reid

Canadian Journal of Law and Technology

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking …

Digital Surveillance Of Covid-19: Privacy And Equity Considerations, Elaine Gibson, Cal Dewolfe, Ilana Luther

Canadian Journal of Law and Technology

In this paper, we examine the potentially deleterious effects of surveillance on vulnerable Canadians. A wide range of digital surveillance technologies have either been deployed or considered for deployment both in Canada and around the world in response to the international emergency created by the COVID-19 pandemic. Some of these technologies are highly effective in predicting or identifying individual cases and/or outbreaks; others assist in tracing contacts or enforcing compliance with quarantine and isolation measures. However, there are necessarily risks associated with their deployment. First are the infringements on privacy rights of citizens and groups. Second, these technologies run the …

Indiana Law Fertility Fraud Expert Participates In Washington, Dc Roundtable, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Professor Jody Madeira, an internationally recognized expert in fertility fraud, bioethics, and law and medicine, participated this morning (January 26) in a bipartisan roundtable discussion with victims of fertility fraud. The event was facilitated by U.S. Representatives Stephanie Bice (R-OK), Mikie Sherrill (D-NJ), Julia Letlow (R-LA), and Chrissy Houlahan (D-PA) following the January 23 introduction of their Protecting Families From Fertility Fraud Act, which would—for the first time—make it a federal crime to knowingly misrepresent the source of DNA used in any procedure that involves assisted reproduction.

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

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 …

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Economics Faculty Articles and Research

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …

National Space Law, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

This chapter addresses national space law. While often slightly different terms such as national space legislation or national space regulation are used, the term national space law initially should be interpreted in the broadest possible sense. National law would thus refer to the totality of all relevant legal documents at the national level, whether entitled law, statute, act, decree, directive, or regulation, plus customary law, implementation by way of government authorization and jurisprudence, as relevant further explained through the writings of recognized experts.

Then, as space law encompasses “every legal or regulatory regime having …