Digital Commons Network^™

“Whoever Invents Or Discovers”: Artificial Intelligence And The Case For Joint Inventorship, Seth F. Littleford

BYU Law Review

Artificial intelligence (AI) is increasingly important in the modern world. Given its fidelity to—and, in some cases, its surpassing of—human performance, people rely upon AI in myriad settings. The AI era is already here, and the technological advancements to come are even more mind-boggling. The United States Patent and Trademark Office (USPTO) has seen a significant increase in patent applications claiming inventions pertaining to AI, but how does the patent system handle when AI invents?

The U.S. Court of Appeals for the Federal Circuit recently held in Thaler v. Vidal that the Patent Act requires inventors listed on patent applications …

Capital Trifurcation, William W. Berry Iii

Texas A&M Law Review

The death penalty is disappearing in the United States. Annual executions remain under 25 per year, and new capital sentences per year have not exceeded 75 in over a decade.

Over the past two decades, however, a new kind of death sentence has emerged—life without parole (“LWOP”). In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution. For both economic and moral reasons, most states are not actively executing prisoners.

Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question—life without parole versus …

Ghost Guns: A Case Study On The Tension Between Public Exigencies And Statutory Construction, Bradley Krause

Catholic University Law Review

Administrative agencies often navigate public policy issues while simultaneously handling complex and highly technical matters. When facing a public emergency, how should courts interpret these agencies’ authorizing statutes? What rules of thumb exist to guide the courts? This Comment answers these questions through a case study on ongoing litigation pertaining to a recent ATF (Bureau of Alcohol, Tobacco, and Firearms) regulation. The regulation, targeted towards ghost guns (also known as “privately manufactured firearms”), seeks to incorporate these weapons within pre-existing definitions in the ATF’s authorizing statute, the Gun Control Act of 1968 (GCA). In spite of challenges to the regulation, …

Challenging The Juridical Link: Standing, Class Actions, And Article Iii's Limitations, Sebastian W. Johnson

University of Cincinnati Law Review

No abstract provided.

Next Steps In Online Courts: Accelerating Access Tojustice Through Court Technology, J.J. Prescott

Alaska Law Review

For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …

The Decline Of The Privity Rule In The Maine Law Of Tort Products Liability: A Conceptual History, Dennis M. Patterson

Maine Law Review

No single issue has more preoccupied modern jurisprudential writers than the limitations of precedent on the lawmaking power of judges. Yet despite this singular concentration, no scholarly consensus has emerged regarding what those limitations are or what form they should take. This continuing theoretical dispute recently manifested itself in a series of decisions rendered by the Law Court. Last spring in the case of Adams v. Buffalo Forge Co., the Law Court reconsidered a significant aspect of two decisions of the previous term: Burke v. Hamilton Beach Division and Hurd v. Hurd. In Burke and Hurd the court decided that …

Ontological Inquiry In The World Of Law: Bringing Forth Subjective Experiencing From The Shadows, Margarida Garcia

Turning Toward Being: The Journal of Ontological Inquiry in Education

This article explores how we assess the value of ontological inquiry in the world of law, and to that end, it seeks to bring forth “seeings” that show up when we open the “curtains” of law, and engage the world of law as a field of subjective experience. By revisiting subjective impressions left from participation in the world of law, and that, for the most part, have remained unexamined, the author imagines what an “ontologically sensitive” approach to legal education, practice, and scholarship might look like and be if more space was given to those who participate in those …

Triangulating The Likelihood Of Confusion: Linguistics And Consumer Surveys, Eric Derosia, Jesse Egbert, Thomas Lee

BYU Law Review

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, …

Corpus Linguistics At The U.S. Patent And Trademark Office, Tabrez Y. Ebrahim

BYU Law Review

This Article examines the intersection of corpus linguistics and patent law. It introduces the foundations of corpus linguistics and its application to the law and advances the potential for its application to patent examination at the United States Patent and Trademark Office (USPTO). Historically, the disciplines of corpus linguistics and patent law did not intersect until scholars began to consider the application of corpus linguistics to patent litigation for interpretation of terms in patent claims. Interpretation of legal language provided by corpus linguistics and applied to patent examination at the USPTO has yet to be addressed and is a novel …

Going Generic: A Linguistics Approach To Genericide In Trademark Law, James A. Heilpern, William G. Eggington, Earl Kjar Brown, Zachary D. Smith

BYU Law Review

This Article examines the phenomenon of trademark genericide—the process by which once-protected brand names like “escalator” and “trampoline” lose their legal status by becoming synonymous with entire product categories. Traditional methods used by courts to assess genericide, such as consumer surveys and dictionary definitions, are often criticized for their subjectivity and lack of scientific rigor. In response, this Article introduces corpus linguistics as a more reliable, data-driven alternative for determining whether a trademark has become generic.

By analyzing real-world language usage through large corpora, corpus linguistics can track the public’s shifting perceptions of a trademark over time. Using case studies …

Disclose By Law, Obfuscate By Strategy: A Corpus-Based Analysis Of Patent Filings, Katherine Ireland, W. Michael Schuster, Tim R. Samples

BYU Law Review

The patent system encourages dissemination of technical information by granting inventors exclusive rights to their inventions in exchange for public disclosure of their technology. The American Inventors Protection Act (AIPA), enacted in 1999, advanced this goal by increasing the scope and speed of disclosure. Previously, filings were published only if and when a patent was granted, but under the AIPA most applications are published eighteen months after filing. The sum of those changes amplified a fundamental tradeoff between protection and exposure. Although patents offer protection, competitors can exploit disclosures by integrating the innovations into their own research and development efforts. …

Corpus Linguistics And The Original Meaning Of The Sixth Amendment, Wesley White

BYU Law Review

The Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.

This Note is among …

A Constitution Of The Earth, To Save Humanity, Luigi Ferrajoli

Buffalo Law Review

Humanity is facing one of the most dramatic moments in its history. There are several global challenges and problems that are not part of the political agenda of national governments, even though their solution is crucial for the survival of humanity.

The Shaky Democratic Legitimacy Of Cosmopolitan Law And Its Destiny In Times Of Crisis, Sergio Dellavalle

Buffalo Law Review

From its earliest introduction in 1795, the notion of cosmopolitan law has made a long way, to finally become an established reference point in the legal discourse. Nonetheless, the concept still raises four fundamental questions. The first focuses on how it has been developed and which were the fundamental authors and theoretical steps that characterized the emergence of this notion. The second and most essential question refers to the meaning of cosmopolitan law by focusing on what characterizes the legal norms that we call cosmopolitan as well as on what distinguishes them from the broader field of traditional international law. …

Why Law "Beyond The State" Need Not Be A Threat To Democratic Values, Paul Schiff Berman

Buffalo Law Review

Discussions of “law beyond the state” almost inevitably run into objections from those who believe that sub- or supranational legal orders necessarily subvert local democratic governance. Self-proclaimed populists and others express concern that the “will of the people” will be unduly subjected to the dictates of “cosmopolitan elites”1 or local factions, or corporate capture. These objections range across the political spectrum. Those on the right tend to focus on concerns that transnational orders will impose human rights or immigration rules on a national polity, while those on the left worry about trade regimes that might impose local labor or environmental …

Hawkes Television, Inc. V. Maine Bureau Of Consumer Credit Protection: A New Loophole In Maine's Consumer Credit Code, Elizabeth S. Pearce

Maine Law Review

The Uniform Consumer Credit Code (U.C.C.C.), enacted in Maine in 1974, is a comprehensive regulatory measure intended to provide "an adequate volume of credit at reasonable cost under conditions fair to both consumers and creditors." Although the Code applies to all consumer credit transactions, consumer credit sales are subject to greater regulation than are consumer leases, and creditors have sought to evade such regulation by characterizing what is in essence a conditional sale as a series of short term renewable leases. The issue in Hawkes Television, Inc. v. Maine Bureau of Consumer Credit Protection (Hawkes TV) was whether such a …

Pornography Commissions And The First Amendment: On Constitutional Values And Constitutional Facts, David A.J. Richards

Maine Law Review

The interlinked questions of free speech, obscenity, and pornography are contextually sensitive—as are many other great issues of constitutional principle—to both normative and factual arguments; that is, much of the disagreement in the discussion of these questions centers on the proper interplay of constitutional values and facts. To what extent, for example, should constitutional values be sensitive to empirical research about the consequences of pornography distribution and use? If sensitive at all, how sensitive? Must the state, for example, satisfy a heavy burden of justification in terms of showing harm caused if it is to abridge pornography distribution and use, …

Reading Law's Great Unread: Qualitative Computational Methods, Artificial Intelligence And The New Empirical Legal Research, Simon Wallace

PhD Dissertations

How will new computational technologies change legal research and our visions of what law is? Inspired by the work of digital humanists, Bourdieu, and sociologists of literature, this dissertation explores how the methods of “distant reading” can be used to develop new classes of critical insights about law. After situating the project theoretically, this dissertation reports on a series of new computational studies about Canadian law. Chapter 1 measures Canadian statutory and regulatory law, showing that law has grown unevenly over the past decade and a half. Chapter 2 uses new artificial intelligence to transcribe and analyze Supreme Court of …

Canadians With Disabilities: Income Security And Tax Policy, Hengameh Saberi, Jinyan Li

Osgoode Hall Law Journal

Various barriers such as reduced work-related capabilities, scarce employment opportunities, and a resulting low level of motivation or incentives have historically led to a compounded level of financial insecurity among the disabled population. In response, the current symposium presents a scholarly examination of a significant federal legislative movement toward financial security and poverty reduction among the disabled population of working age—the enactment of the Canada Disability Benefit Act (CDBA). Here we contextualize the CDBA and briefly introduce the proceeding symposium contributions.

Minimalist Textualism, Felipe Jiménez

Seton Hall Law Review

No abstract provided.

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Ad Hoc Constructions Of Penal Statutes, Joel S. Johnson

Notre Dame Law Review

The Supreme Court construed penal statutes in forty-three cases from the 2013 Term through the 2022 Term. In those cases, the Court tended to adopt narrow constructions, a preference consistent with several substantive canons of construction, such as the rule of lenity and the avoidance of constitutional vagueness concerns. Substantive canons were routinely included in party briefs, frequently raised during oral argument, and occasionally explicated in concurring opinions. Yet the Court did not rely on substantive canons in the vast majority of the narrow-construction cases. For example, the Court never firmly relied upon the rule of lenity—the substantive canon most …

Textualism In Practice, Anita S. Krishnakumar

Duke Law Journal

Textualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy …

The Intersection Of Socio-Cultural System And Legislation: Family Protection Laws In Palestine And Gender Equality, Muayad K. Hattab, Fayez A. Mahamid

An-Najah University Journal for Research - B (Humanities)

Arabic and Muslim societies still fear every new proposition or change that could lead to the enhancement of women’s economic liberation or could undermine male domination over women. The social and religious panic associated with the proposed law on “Family Protection Law from Violence” that has been witnessed in Palestine, is a clear illustration of this fear. Objective: The aim of this study is to examine the impact that religious and social culture has on promulgating new laws that are directly connected to issues of women’s rights and gender equality in the Muslim community, where Palestine is the example …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Articles

This Article explores the evolution of human capital disclosure-firm-supplied information about various workforce-related matters-as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management ("HCM") disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors' oversight responsibilities in a number of areas, including HCM, while labor's power has unexpectedly increased in some …

Redefining Race In Redistricting, R. Jared Evans, Victoria Wenger

Vanderbilt Social Justice Reporter

No abstract provided.

Do Rural Places Matter?, Stephen Clowney

Connecticut Law Review

Rural communities are at a crossroads. On one hand, small towns continue to receive robust support from the federal government. Congress sends billions of dollars in agricultural support, homeownership subsidies, and infrastructure spending to rural places every year. Yet, despite ongoing federal investment, conditions in rural America have deteriorated. Economic growth, educational opportunities, and health outcomes in rural places all lag behind the rest of the country.

This Article asks what has gone wrong. Why do rural communities continue to lose ground despite such significant outlays from Congress? This Article contributes to the ongoing debate about the future of the …

From Constitutional Law To Constitutional Change, Steven D. Schwinn

Chicago-Kent Law Review

No abstract provided.

Originalism's Selection Problem, Darrell A.H. Miller

William & Mary Bill of Rights Journal

This Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.

This abstract has been taken from the author's introduction.

Defining Law But Not Justice, Franciska Coleman

Chicago-Kent Law Review

No abstract provided.