Digital Commons Network^™

The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin

Faculty Scholarship

Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how AI functions. Policymakers and the public increasingly sound alarms about black box AI. A particularly pressing area of concern has been criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Fractionalizing Investment Securities: Using Fintech To Expand Financial Inclusion, Steven L. Schwarcz, Robert Bourret

Faculty Scholarship

Recent innovations in financial technology, or “FinTech,” are enabling the fractionalization of investment securities, such as shares of stock and bonds. We explain how this fractionalization can fundamentally expand financial inclusion both for investors and for businesses, including small and medium-sized enterprises (SMEs). Using the fractionalization of investment securities as a model, we also counter the argument that FinTech-enabled transactions should not need regulation because they are governed by mathematical algorithms under so-called smart contracts. Additionally, we derive and test a regulatory framework to identify and help to mitigate the risks caused by fractionalization. In the process, we also explain …

Domestic Supply (A Feminist Proposal), Jennifer Hendricks

UC Law Constitutional Quarterly

No abstract provided.

Decoding U.S. Tort Liability In Healthcare's Black-Box Ai Era: Lessons From The European Union, Mindy Duffourc, Sara Gerke

Faculty Scholarly Works

The rapid development of sophisticated artificial intelligence (“AI”) tools in healthcare presents new possibilities for improving medical treatment and general health. Currently, such AI tools can perform a wide range of health-related tasks, from specialized autonomous systems that diagnose diabetic retinopathy to general-use generative models like ChatGPT that answer users’ health-related questions. On the other hand, significant liability concerns arise as medical professionals and consumers increasingly turn to AI for health information. This is particularly true for black-box AI because while potentially enhancing the AI’s capability and accuracy, these systems also operate without transparency, making it difficult or even impossible …

Clearing Up The Confusion: A Three-Part Framework For Applying The Copyright Preemption Clause To Right Of Publicity Claims, Annie Seay

Emory Law Journal

To prevent conflicting state-law interests and federal copyright interests in a single claim, Congress enacted Section 301 of the Copyright Act of 1976—providing a two-prong test to determine when a state-law claim is preempted by federal copyright law. Though Section 301 appears to be a clear and simple test, it has proven to be anything but. Between 1986 and 2023, six of the thirteen circuit courts decided whether state-law right of publicity claims are preempted by federal copyright law using the Section 301 two-prong test, but each court’s analysis was vastly different from the other. Specifically, the Second, Third, Fifth, …

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

Reforming Community Advocacy Letters To Counteract The Unfair Advantages For Typical White-Collar Defendants, Hope F. Kagan

Emory Law Journal

Most criminal cases end in conviction by jury or guilty plea, making the sentence—for many defendants—the most critical part of their case. Sentencing allows defendants to humanize themselves, make legal arguments based on the Sentencing Guidelines, and advocate for leniency from the sentencing judge. One tactic white-collar defendants use for mitigation is asking their community to send advocacy letters to the judge that humanize them, contextualize their offense, and highlight their good works. White-collar defendants often have social connections with privileged, well-connected people that put them at an advantage over differently situated criminal defendants in seeking and receiving community advocacy …

Awards And Prizes, University Of Notre Dame

Commencement Programs

The University's listing of Awards and Prizes for 2024, including the full descriptions of each award, could not be printed and included in the Commencement Program for 2024. [It was later included in the Official Program posted by the University Archives.]

Just For Show: Eliminating Judicial Exceptions To Section 101 Would Render Limits On Patent-Eligible Subject Matter Meaningless, Katie Crocker

Cybaris®

No abstract provided.

Ai Manipulation At The Uspto: The Patent Bargain The Public Did Not Ask For, Matthew Korwin

Student Works

No abstract provided.

The Private Law Of Self-Help, João Marinotti

Articles by Maurer Faculty

Individuals regularly take steps to protect themselves, their property, and their broader legal interests. They carry pepper spray, have guard dogs, and install fences. Such measures are colloquially deemed methods of self-help. Yet, despite its ubiquity, self-help as a legal concept has been chronically understudied. Consequently, American private law is missing a doctrinally coherent and prescriptively useful framework for self-help. As a matter of legal theory, this conceptual void is problematic in and of itself; the doctrinal incoherence stemming from this analytical gap decreases the law’s stability and undermines its predictability.

But the concern is not merely theoretical. The magnitude …

On The Rights Of Sentient Beings: The Case For Expanding Due Process Of Law To Non-Human Animals, John Bolliger

Mitchell Hamline Law Review

No abstract provided.

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

Artificial Intelligence And Intellectual Property In Healthcare Technologies, Charlotte A. Tschider, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Establishing A Future-Proof Framework For Ai Regulation: Balancing Ethics, Transparency, And Innovation, Marcia Narine Weldon, Gabrielle Thomas, Lauren Skidmore

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Testing The Test: Questioning The Role Of High-Stakes Standardized Testing In Education, Raul Valcarcel

Student Works

No abstract provided.

Regulation Of An Industry Created Without Regulation: Implications Of The Cftc’S Attempt To Oversee Crypto’S, Natalie H. Lucciola

Student Works

No abstract provided.

Reforming State Policies On Sex Education Through Local Elections: Navigating The Intersection Of Parental Rights And The Fourteenth Amendment, Alyssa Duffy

Student Works

No abstract provided.

Access And Opportunity For All: How New Jersey’S Current Educational System Disenfranchises Students, And How School Choice Vouchers And Scholarships Would Help Students Succeed, Bernadette Menendez

Student Works

No abstract provided.

The Feedback Loop: A Critical Race Theory Interpretation Of The Relationship Between Compensatory Damages And Environmental Justice, Amelia Hadar

Student Works

No abstract provided.

Balancing The Scales: Harnessing The Power Of Artificial Intelligence (Ai) In Healthcare Fraud Detection While Navigating Ai’S Perils, Ally Winter

Student Works

No abstract provided.

Juries And Tax: The Effect Of Income Taxation On Tort Damages, Jeffrey H. Kahn, John E. Lopatka

Scholarly Publications

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 1 0 0th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions. Proponents of a rule that awards should reflect …

Failing To See What's In Front Of Our Eyes: The Effect Of Cognitive Errors On Corporate Scandals, Nancy B. Rapoport

Scholarly Works

Why do we believe flim-flam artists so readily, especially in the business and commercial realm? This Article explores four reallife versions of “The Emperor’s New Clothes” fable—FTX, WeWork, Theranos, and a former bankruptcy judge’s hidden romance— and asks why people bought into the hype. Where were the warning signs, and how might we better spot those signs in the future?

Stakeholder's Divided Concerns On Issues Of Artificial Intelligence And Inventorship: Suggested Guidance To Alleviate These Concerns, Madison Mathews

Nova Law Review

No abstract provided.

From The Fox To Onlyfans: The Changing Landscape Of Property Law, Vicenc Feliu

Nova Law Review

No abstract provided.

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

Reaching Past Rucho: A Constitutional Tort For Money Damages Against Individuals Who Draw Gerrymandered Districts, Turner, Sam

Santa Clara Law Review

The Supreme Court in Rucho v. Common Cause held that the issue of partisan gerrymandering—that is, the drawing of political districts in a way that favors the party in power— presented a political question that was outside the competency of the courts to solve, at least through constitutional law. This article argues that Rucho does not close the door to judicial action in the face of partisan gerrymandering but instead closes the door only to the remedy proposed in the case. As with practically all major constitutional cases in recent memory, the Rucho plaintiffs were seeking relief that was equitable …

Behind Closed Doors: How Some Civil Settlements May Harm The Public Good, Madison Donahue-Wolfe

University of San Francisco Law Review

No abstract provided.