Digital Commons Network^™

Community Integration Of People With Disabilities A Quarter Century After Olmstead V. L.C., Michael Ashley Stein, Benjamin Barsky, Lisa I. Iezzoni

Faculty Scholarship

No abstract provided.

Consumer Agents, Rory Van Loo

Faculty Scholarship

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher …

Design Problems, Mark P. Mckenna, Jessica Silbey

Faculty Scholarship

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) How do designers conceive of and solve design problems through innovative design practice?; and (2) How do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns …

The Great Scrape: The Clash Between Scraping And Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society.

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this …

Law As A Lamp Post, Janet Freilich

Faculty Scholarship

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by …

Generative Contracts, Spencer Williams

Faculty Scholarship

This Article examines how consumers can use generative artificial intelligence to write their own contracts. Popularized by “chatbots” such as OpenAI’s ChatGPT, generative AI is a form of artificial intelligence that uses statistical models trained on massive amounts of data to generate human-like content such as text, images, music, and more. Generative AI is already being integrated into the practice of law and the legal profession. In the context of contracting and transactional law, most generative AI tools are focused on reviewing and managing large volumes of business contracts. Thus far, little attention has been given to using generative AI …

Artificial Intelligence And The Self-Represented Inventor, Brenda M. Simon

Faculty Scholarship

Lack of access to competent legal representation is pervasive throughout the justice system. Unfortunately, the patent system is no exception. Self-represented inventors are far less likely to obtain patents than those with legal representation. Increasing access to artificial intelligence (AI) can mitigate some of the disadvantages of self-representation, but the use of AI will also raise new challenges. To the extent that AI systems can help self-represented inventors, they can begin to address one of the underlying causes of the patent gap—lack of access to high quality legal services. Women and people of color hold fewer patents, in part, because …

When Lsat Doesn't Matter And Other Surprising Finds From A Deep Dive Into Academic Probation In Law School, Kari Milligan, Ryan Jerome Lecount

Faculty Scholarship

Numerous students nationwide are placed on academic probation and ultimately dismissed from law school each year. While students often carefully conceal their probationary status, their lack of visibility within legal communities should not be mistaken for an absence of need. These students are frequently uniquely vulnerable—facing unexpected family emergencies or entering law school unprepared. The consequences of dismissal are dire, with students experiencing adverse mental health effects and financial exigencies. During the 2023–2024 academic year alone, tuition and fees for a single year of law school ranged from $30,000 to $48,000. Yet, little research—particularly quantitative—has been conducted in service of …

Medicare Mandates For Shared Decision Making With Patient Decision Aids: Linking Payment To Preference, Thaddeus Pope

Faculty Scholarship

Since 2015, the Centers for Medicare and Medicaid Services (CMS) has increasingly required shared decision making with evidence-based patient decision aids as an essential Medicare condition for payment. CMS is doing this because it recognizes that most healthcare is preference sensitive and value laden. So, whether treatment is “right” or “beneficial” for a patient is not only a matter of clinical expertise. It equally depends on the patient’s values, preferences, and goals. So, CMS wants to ensure that patients understand the risks, benefits, and alternatives to the healthcare that they receive and for which CMS pays. In short, under its …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Faculty Scholarship

Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …

An Introduction To U.S. Groundwater Law: Domestic And Transboundary Considerations, Caleb Cook, Gabriel Eckstein

Faculty Scholarship

In light of the scientific and historical factors that have shaped the development of groundwater law and policy, this chapter seeks to provide a primarily descriptive account of its current state in the United States and to lay a foundation for future efforts to address gaps in the regime. Section 8B.02 considers the importance of groundwater in modern American society, with a particular focus on its uses and the threats these resources face. Section 8B.03 describes the U.S. framework for the domestic governance of groundwater resources. Section 8B.04 describes the mechanisms for transboundary governance of groundwater between the United States …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman

Faculty Scholarship

Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …

Overcoming Judicial Innumeracy: A Proposal To Bring The Venerable Process Of Peer Review To The Enduring Problem Of Courts’ Scientific Illiteracy, David L. Faigman

Faculty Scholarship

Lawyers are not known for their proficiency in math and science. Most of us who went to law school reached a point in our math and science studies when we realized that neither medicine nor engineering were likely to be successful career paths. It is these lawyers who become judges. Yet, the United States Supreme Court has increasingly put the burden for deciding complex scientific and technical questions in the hands of judges. This Article explores this trend of putting greater responsibility for deciding scientific and technical issues on judges, particularly in the areas of evidence law, administrative law, and …

Doge's Matrix Structure And Presidential Power, Jason Marisam

Faculty Scholarship

At the start of his second term, President Trump created the Department of Government Efficiency (DOGE), a novel White House entity tasked with reshaping the federal bureaucracy. Far more than a traditional advisory commission, DOGE employed a matrix structure that embedded staff across executive agencies, establishing dual reporting lines to both agency heads and the White House. This essay argues that DOGE’s organizational design represents a structural innovation in presidential control and an evolution of the longstanding “czar” model. Drawing on organizational and principal-agent theories, the essay explores how the matrix structure enhanced the President’s capacity to monitor agency behavior, …

Progressive Copyright Theory, Emily Behzadi Cárdenas

Faculty Scholarship

The legacy of colonialism, dispossession, and racial injustice is foundational to existing inequalities in modern copyright law. Traditionally, the primary purpose of copyright laws was to incentivize “progress” through the dissemination of new works, thereby conferring economic benefits to both the creator and society at large. Such economic-based notions of “progress” have historically favored the creative contributions of privileged groups while simultaneously disregarding those of historically oppressed groups. Progressive property theory acknowledges that there are social responsibilities and relationships inherent in private property ownership. Scholarship on progressive property law has exposed the need to reevaluate how property law regimes perpetuate …

Navigating Copyright In Ai-Enhanced Game Design: Legal Challenges In Multimodal And Dynamic Content Creation, Andrew Begemann, James Hutson

Faculty Scholarship

The integration of artificial intelligence (AI) in video game design has transformed traditional workflows, allowing for the generation of text, images, music, videos, and code at unprecedented scales. However, this advancement presents complex challenges for copyright law, traditionally rooted in human originality and authorship. This article examines recent case law that underscores the evolving legal landscape, exploring landmark cases such as Zarya of the Dawn and Andersen v. Stability AI. These cases reveal the tensions between AI-generated outputs and copyright eligibility, especially in the dynamic, multimodal compositions inherent to video games. The review analyzes how various AI tools are employed …

Legal Practice Practicums: Making A Case For Change: A Way Forward, John O. Sonsteng, Michael Sonsteng, Kenneth Rubenzer

Faculty Scholarship

No abstract provided.

Determinants Of Socially Responsible Ai Governance, Daryl Lim

Faculty Scholarship

The signing of the first international AI treaty by the United States, European Union, and other nations marks a pivotal step in establishing a global framework for AI governance, ensuring that AI systems respect human rights, democracy, and the rule of law. This article advances the concepts of justice, equity, and the rule of law as yardsticks of socially responsible AI—from development through deployment—to ensure that AI technologies do not exacerbate existing inequalities but actively promote fairness and inclusivity. Part I explores AI’s potential to improve access to justice for marginalized communities and small and medium-sized law firms while scrutinizing …

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

The Unconscionably Short Warranty, Marie T. Reilly

Faculty Scholarship

A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for five years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and, therefore, the buyer's problem. Advocates for consumers have developed a theory to escape the claim-barring consequence of expiration of the warranty period. They have argued with some success that the warranty period that would otherwise bar their claim is unconscionable and thus unenforceable under Uniform Commercial Code ("UCC") section 2-302. The warranty period term, they …

Training Module And Assessment Strategy For Light Microscopy Skills Training In A Research Environment, Kristopher E. Kubow, Joseph A. Harsh

Faculty Scholarship

Training in specialized techniques and instrumentation is an important component of undergraduate and graduate education. While such training can occur in formal lab courses, it also occurs as students engage in research. Although training in a research lab setting is typically informal, implementing evidence-based practices from the classroom would be beneficial, particularly for learning complex techniques and instruments, for example, light microscopy. Using advanced microscopes for research is more complicated than using teaching microscopes in a course. In addition, microscopes are easy to misuse because they will generally always produce an image even if that image is suboptimal, misleading, or …

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

Best Practices For Creating Hypotheticals For Legal Research And Writing, Olivia Smith Schlink, Aimee Self-Pittman, Theresa Tarves, Melissa Strickland

Faculty Scholarship

No abstract provided.

Data Property & Digital Sales, Christina Mulligan

Faculty Scholarship

No abstract provided.

Altering Rules: The New Frontier For Corporate Governance, Gabriel Rauterberg, Sarath Sanga

Faculty Scholarship

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules — statutory rights, the fiduciary duty of loyalty, even the central role of the board — and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom.

We argue, however, that the best …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

The Artificial Intelligence Trolley Problem, James Cooper, Kashyap Kompella

Faculty Scholarship

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Social Justice Unionism: Intersectionality In The Twenty-First Century Workplace, Shirley Lin

Faculty Scholarship

No abstract provided.

Normalizing Facial Recognition Technology And The End Of Obscurity, Woodrow Hartzog, Evan Selinger, Judy Hyojoo Rhee

Faculty Scholarship

This article argues that facial recognition technology is the most dangerous surveillance tool ever invented. Given the unique threats this morally suspect tool poses to privacy, civil liberties, human flourishing, and democracy, the only appropriate response is a ban. To justify our position, we explain why facial recognition is distinctive among biometrics, clarify how even seemingly benign and positive uses of the technology can trigger dangerous normalization dynamics, and pinpoint why current United States laws (with reverberations in the EU’s AI Act) are designed to accelerate a slippery slope that makes mass surveillance nearly inevitable. Our most fundamental contribution lies …