Law Commons^™

Establishing A Legitimate Indonesia’S Government Electronic Surveillance Regulation: A Comparison With The U.S. Legal Practices, Citra Yuda Nur Fatihah

Indonesia Law Review

Cybersecurity and privacy have now become a matter of increasing concern for citizens, the private sector, and the Indonesian government. The government is currently struggling to combat cyberattacks and data breaches. Indonesia is, in fact, in the early stages of developing a national cybersecurity strategy. The legal framework for cybersecurity in Indonesia is still weak. The one and only legal basis for regulating cybersecurity, privacy, and security, in Indonesia so far is the Electronic Information and Transactions Law No. 11/2008 and its revised version Law No.19/2016. Furthermore, the government through the Indonesian Ministry of Communication and Information has just issued …

Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, And Why Personhood May Be The Answer, Benedict See

Brooklyn Law Review

Artificial intelligence (AI) is a part of everyday life. From our phones, to social media accounts, to online shopping, AI is present and enhances our daily experiences. One area where AI has a heavy (and an increasing) presence is the medical industry. Just as humans make mistakes, so does AI. However, when a human doctor makes a mistake, they can be sued for malpractice, but when AI makes a mistake, who is to be held responsible? Because tort law was designed with humans in mind, it may be hard to apply to medical AI, who’s “black box” algorithms make their …

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …

A Trip Through Employment Law: Protecting Therapeutic Psilocybin Users In The Workplace, Benjamin Sheppard

Journal of Law and Health

In 2020, Oregon voters legalized therapeutic psilocybin in response to a plethora of scientific studies showing symptom reduction for depression, anxiety, substance use disorders, opioid addictions, migraines, other mental illnesses, HIV/AIDS, and cancer. The legal rethinking regarding therapeutic psilocybin continues in both state legislatures and city councils. Yet, despite state and local legalization or decriminalization of therapeutic psilocybin it remains illegal under the federal Controlled Substances Act. This tension between local and federal law places therapeutic psilocybin users and their employers in a difficult position. Because all types of psilocybin use remain illegal under federal law, a zero-tolerance drug use …

Indiana Law’S Lubin, Sun Help Advise Kosovo Government On Country’S Cybersecurity Act, James Owsley Boyd

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

No abstract provided.

Nhtsa Up In The Clouds: The Formal Recall Process & Over-The-Air Software Updates, Emma Himes

Michigan Technology Law Review

Software updates are pushed to vehicles “over-the-air” (OTA) with increasing frequency as they reduce costs of visiting dealerships and auto shops to receive maintenance. These updates, pushed from the cloud, have been used to remedy safety defects in vehicles and improve software controlling all aspects of vehicles from steering to rearview mirrors. Remedies of vehicle safety defects are overseen by the National Highway Traffic Safety Administration (NHTSA); however, because many OTA software updates do not remedy issues officially deemed safety defects, they are pushed straight from the manufacturer to drivers with little government oversight or transparency. NHTSA’s recall process was …

Content Moderation Remedies, Eric Goldman

Michigan Technology Law Review

This Article addresses a critical but underexplored aspect of content moderation: if a user’s online content or actions violate an Internet service’s rules, what should happen next? The longstanding expectation is that Internet services should remove violative content or accounts from their services as quickly as possible, and many laws mandate that result. However, Internet services have a wide range of other options—what I call “remedies”—they can use to redress content or accounts that violate the applicable rules. This Article describes dozens of remedies that Internet services have actually imposed. It then provides a normative framework to help Internet services …

Arms Control 2.0: Updating The Cyberweapon Arms Control Framework, Evan Mulbry

Michigan Technology Law Review

This Note analyzes multiple problems with the existing arms control framework for cyberweapons as well as surveillance technology and calls for four specific areas of reform. First, the existing framework does not specifically enumerate the software controlled under existing arms control treaties, which can lead to gaps in international export control compliance. Cyberweapons should be enumerated with greater specificity to prevent confusing and disjointed implementation by states. Second, the divide between Wassenaar and Shanghai Cooperation Organization conceptions of what constitutes a cyberweapon reduces the effectiveness of international control because nations do not share an agreed upon cyberweapon definition. States should …

An Empirical Study: Willful Infringement & Enhanced Damages In Patent Law After Halo, Karen E. Sandrik

Michigan Technology Law Review

For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents. The reasoning for this advice: if there is no pre-suit knowledge of a patent, then it is nearly impossible for a patent holder to prove that enhanced damages are warranted. Pre-suit knowledge is a prerequisite for a finding of willful infringement, which is itself a prerequisite for awarding enhanced damages. The median patent damages award is around ten million dollars, and large companies like Intel, Teva Pharmaceuticals, Microsoft, and Abbott Laboratories have all recently faced billion-dollar patent infringement judgments. In this landscape, a …

Individuals As Gatekeepers Against Data Misuse, Ying Hu

Michigan Technology Law Review

This article makes a case for treating individual data subjects as gatekeepers against misuse of personal data. Imposing gatekeeper responsibility on individuals is most useful where (a) the primary wrongdoers engage in data misuse intentionally or recklessly; (b) misuse of personal data is likely to lead to serious harm; and (c) one or more individuals are able to detect and prevent data misuse at a reasonable cost.

As gatekeepers, individuals should have a legal duty to take reasonable measures to prevent data misuse where they are aware of facts indicating that the person seeking personal data from them is highly …

Copying Copyright: Adopting A Fair Use Defense In Patent Law In Times Of Public Health Crisis, Kellie C. Van Beck

Brooklyn Law Review

Epidemics have devastated humankind for centuries. Given the simultaneous rise of advanced disease prevention and treatment and the great potential for mass public uptake, it is unsurprising that the U.S. pharmaceutical industry has grown to $775 billion in annual sales revenue. It is clear that the commercialization of important public health measures is not without controversy. Of particular debate is that vaccine and other drug manufacturers monopolize their products and control them through patent laws. Yet there is a strong dichotomy between the importance of patents and the need for public access to innovations. This is not to say that …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Putting A Finger On Biometric Privacy Laws: How Congress Can Stitch Together The Patchwork Of Biometric Privacy Laws In The United States, Eliza Simons

Brooklyn Law Review

The use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben-Dor

Brooklyn Law Review

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this Article, we canvass the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

How Artificial Intelligence Machines Can Legally Become Inventors: An Examination Of And Solution To The Decision On Dabus, Justyn Millamena

Journal of Law and Policy

With proliferation of Artificial Intelligence research and development, it is foreseeable that these machines will invent many new patentable technologies. However, the United States Patent and Trademark Office recently deemed a patent application incomplete for listing an AI machine as the inventor. If the USPTO’s decision is not corrected, the patent system will be in danger because many fraudulent patent applications that list incorrect inventors will be filed. This would drastically change existing and settled inventorship jurisprudence and might endanger the patent protection over such patents. This Note argues that the USPTO’s reasons for not allowing the Artificial Intelligence machine …

Full Of Questions And Wonder: Roberta Karmel's Legacy, Alan R. Palmiter

Brooklyn Journal of Corporate, Financial & Commercial Law

Roberta Karmel has been perhaps the keenest observer and commentator on the securities industry and its regulation for the past five decades. Her observations about securities regulation—during the SEC’s precocious adolescence and into its young adulthood—have framed the academic inquiry of all of us who have written on the subject during this period. But more valuable to us than her observations have been her questions, full of wonder and penetrating insight. We securities academics, the enterprise of securities regulation, and especially market capitalism, all owe an enormous debt of gratitude to Professor Karmel.

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

An Analysis Of The Patent Linkage System And Development Of The Biosimilar Industry In Taiwan, Jerry I-H Hsiao

Brooklyn Journal of International Law

In 2019, as an effort to join the Trans-Pacific Partnership (TPP) Agreement (now Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)), Taiwan has implemented the patent linkage system which covers both small molecule generic drugs and large molecule biosimilar into the Pharmaceutical Affair Act. The system modeled after the U.S.’s patent linkage system designed for small molecule drugs under the Hatch Waxman Act (HWA). Based on the experience of the patent linkage system under the HWA, biosimilar industry representatives in Taiwan contended that the adoption of the patent linkage system will be detrimental to the development of local industry. By …

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Northwestern Journal of Technology and Intellectual Property

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Foreword: Law + Computation: An Algorithm For The Rule Of Law And Justice?, Daniel W. Linna Jr.

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Legislative Recipe: Syntax For Machine-Readable Legislation, Megan Ma, Bryan Wilson

Northwestern Journal of Technology and Intellectual Property

Legal interpretation is a linguistic venture. In judicial opinions, for example, courts are often asked to interpret the text of statutes and legislation. As time has shown, this is not always as easy as it sounds. Matters can hinge on vague or inconsistent language and, under the surface, human biases can impact the decision-making of judges. This raises an important question: what if there was a method of extracting the meaning of statutes consistently? That is, what if it were possible to use machines to encode legislation in a mathematically precise form that would permit clearer responses to legal questions? …

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura Moy

William & Mary Bill of Rights Journal

Part I of this Article explains how face recognition is used in conjunction with eyewitness identification in the law enforcement context. Part II explores how and why the growing use of face recognition technology may increase, rather than decrease, misidentifications and therefore wrongful convictions. Part III recommends policy changes that should be considered, including some of the reforms to eyewitness identification procedures that have been advanced by others.

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

Chapter 8: Information Technology And The New Capitalism, James Bessen

Faculty Scholarship

Harnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.

Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including …

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

All Faculty Scholarship

New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed …

Bahr V. Regan, Aspen B. Ward

Public Land & Resources Law Review

In June 2015, the Lake Fire burned through California’s San Bernardino National Forest. Three hundred miles east of the fire, six air quality monitors exceeded NAAQS in Phoenix, Arizona. Arizona’s Department of Environmental Quality petitioned the EPA to exclude those exceedances to avoid stricter regulatory burdens and the need for contingency measures. Applying the Exceptional Events Rule, the EPA permitted the petition to exclude the data therefore allowing Phoenix to successfully demonstrate attainment of the ozone NAAQS by the July 2018 deadline. Petitioners sought review of the EPA’s final decision and were denied their petition for review by the Ninth …

Addressing The Divisions In Antitrust Policy, Herbert J. Hovenkamp

All Faculty Scholarship

This is the text of an interview conducted in writing by Professor A. Douglas Melamed, Stanford Law School.

A Human Being Wrote This Law Review Article: Gpt-3 And The Practice Of Law, Amy B. Cyphert

Law Faculty Scholarship

Artificial intelligence tools can now “write” in such a sophisticated manner that they fool people into believing that a human wrote the text. None are better at writing than GPT-3, released in 2020 for beta testing and coming to commercial markets in 2021. GPT-3 was trained on a massive dataset that included scrapes of language from sources ranging from the NYTimes to Reddit boards. And so, it comes as no surprise that researchers have already documented incidences of bias where GPT-3 spews toxic language. But because GPT-3 is so good at “writing,” and can be easily trained to write in …