Law Commons^™

Suspect Development Systems: Databasing Marginality And Enforcing Discipline, Rashida Richardson, Amba Kak

University of Michigan Journal of Law Reform

Algorithmic accountability law—focused on the regulation of data-driven systems like artificial intelligence (AI) or automated decision-making (ADM) tools—is the subject of lively policy debates, heated advocacy, and mainstream media attention. Concerns have moved beyond data protection and individual due process to encompass a broader range of group-level harms such as discrimination and modes of democratic participation. While a welcome and long overdue shift, the current discourse ignores systems like databases, which are viewed as technically “rudimentary” and often siloed from regulatory scrutiny and public attention. Additionally, burgeoning regulatory proposals like algorithmic impact assessments are not structured to surface important –yet …

Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, Joe Hillman

University of Michigan Journal of Law Reform

As autonomous vehicles become more commonplace and roads become safer, this new technology provides an opportunity for courts to reconsider the constitutional rationale of modern search and seizure law. The Supreme Court should allow drivers to use evidence of police officer conduct relative to their vehicle’s technological capabilities to argue that a traffic stop was pretextual, meaning they were stopped for reasons other than their supposed violation. Additionally, the Court should expand the exclusionary rule to forbid the use of evidence extracted after a pretextual stop. The Court should retain some exceptions to the expanded exclusionary rule, such as when …

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely …

Smart Cars, Telematics And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Robot Criminals, Ying Hu

University of Michigan Journal of Law Reform

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is …

Beyond Rights And Welfare: Democracy, Dialogue, And The Animal Welfare Act, Jessica Eisen

University of Michigan Journal of Law Reform

The primary frameworks through which scholars have conceptualized legal protections for animals—animal “rights” and animal “welfare”—do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal “rights” approach focuses on the need for limits or boundaries preventing animal use, while the animal “welfare” approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change …

Connect The Dots: Patents And Interdisciplinarity, Michal Shur-Ofry

University of Michigan Journal of Law Reform

This Article unravels a troubling paradox in the ecosystem of innovation. Interdisciplinarity is widely recognized as a source of valuable innovation and a trigger for technological breakthroughs. Yet, patent law, a principal legal tool for promoting innovation, fails to acknowledge it in an explicit, consistent manner. Moreover, although the scientific understanding of the significance of interdisciplinarity for innovation increasingly relies on big data analyses of patent databases, patent law practically ignores patent data as a source of information about interdisciplinary innovation. This Article argues that patent law should connect the dots—explicitly recognize interdisciplinarity as a positive indication when deciding whether …

Optimal Property Rights For Emerging Natural Resources: A Case Study On Owning Atmospheric Moisture, Jianlin Chen

University of Michigan Journal of Law Reform

This Article critically examines the design of property rights for emerging natural resources—naturally occurring substances that humans have only recently come to be able to exploit viably—through a case study of how the fifty states allocate ownership in, and regulate the use of, atmospheric moisture, an issue that has emerged in the context of weather modification (particularly cloud seeding). Building on the surprising finding that legislative declarations of state ownership have not resulted in greater regulatory control or other substantial restrictions on private use, this Article highlights a dimension of property rights design that has yet to receive concerted scholarly …

Can You Diagnose Me Now? A Proposal To Modify The Fda’S Regulation Of Smartphone Mobile Health Applications With A Pre-Market Notification And Application Database Program, Stephen Mcinerney

University of Michigan Journal of Law Reform

Advances in mobile technology continually create new possibilities for the future of medical care. Yet these changes have also created concerns about patient safety. Under the Food, Drug, and Cosmetic Act, the Food and Drug Administration (FDA) has the authority to regulate a broad spectrum of products beyond traditional medical devices like stethoscopes or pacemakers. The regulatory question is not if the FDA has the statutory authority to regulate health-related software, but rather how it will exercise its regulatory authority. In September 2013, the FDA published Final Guidance on Mobile Medical Applications; in it, the Agency limited its oversight to …

Power To The People: Why We Need Full Federal Preemption Of Electrical Transmission Regulation, Max Hensley

University of Michigan Journal of Law Reform

State and federal governments have made significant investments in the development and installation of renewable energy technology. However, further increases in renewable power use have been stymied by the continued mismatch between the national interest in connecting consumers with utility-scale wind and solar installations and state and local control over the siting of electrical transmission lines. Because renewable power potential is often located far from consumers, transmission lines must cross multiple jurisdictions whose local interests have tended to prevent or significantly delay development. This Note analyzes that disconnect, reviews academic and legislative proposals to overcome it, and proposes a way …

Children Of Assisted Reproduction, Kristine S. Knaplund

University of Michigan Journal of Law Reform

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …

Protecting Anonymous Expression: The Internet's Role In Washington State's Disclosure Laws And The Direct Democracy Process, Karen Cullinane

University of Michigan Journal of Law Reform

This Note proposes that the Washington State Legislature amend its Public Records Act to exempt from public disclosure personal information legally required to be disclosed by signers of referendum petitions. This Note also proposes that the Washington State Legislature designate an electronic system, to be detailed in its election law, by which referendum petitions can be checked for fraud without violating the right to anonymous expression protected by the First Amendment. Part I describes Washington State's referendum process and the path of Doe v. Reed, the case animating the reform presented in this Note. Part II illustrates how the rise …

Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen

University of Michigan Journal of Law Reform

Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency …

Privacy 3.0-The Principle Of Proportionality, Andrew B. Serwin

University of Michigan Journal of Law Reform

Individual concern over privacy has existed as long as humans have said or done things they do not wish others to know about. In their groundbreaking law review article The Right to Privacy, Warren and Brandeis posited that the common law should protect an individual's right to privacy under a right formulated as the right to be let alone-Privacy 1.0. As technology advanced and societal values also changed, a belief surfaced that the Warren and Brandeis formulation did not provide sufficient structure for the development of privacy laws. As such, a second theoretical construct of privacy, Privacy 2.0 as …

Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant

University of Michigan Journal of Law Reform

Legislators in Nevada have already acted to modernize the law of wills. This Article advocates that other states follow their lead and depart from what is described as the "Gutenberg Paradigm" by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print, Johann Gutenberg's role in this development, and the emergence of the "Gutenberg Paradigm." Part Two examines the history and policy underpinnings of will execution formalities, and the role of the "writing" requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. More specifically, Part Three highlights …

Measuring The Next 30 Years, Beth Locker, Andrew Barclay

University of Michigan Journal of Law Reform

The last thirty years have seen many changes in the field of child protection, as child welfare law and policy have been undergoing nearly constant change. Those changes, however, have rarely been supported by data or scientific research; rather, they seem to have been largely driven by individual perception of events and gut instincts resulting in what has become essentially a folklore-based system. By focusing on data and scientific research, we hope for better outcomes, but short of that, we at least hope to know whether, and why, outcomes change. The move towards data collection and analysis has begun, but …

Biopiracy And Beyond: A Consideration Of Socio-Cultural Conflicts With Global Patent Policies, Cynthia M. Ho

University of Michigan Journal of Law Reform

This Article provides afresh and multi-dimensioned approach to a long-standing claim of biopiracy patents made by developing countries and communities. The basic principles of patent law and policy are first established to provide a foundation from which to evaluate the claim that genetic resources and traditional knowledge from developing countries are being misappropriated in a variety of ways that are loosely referred to as biopiracy. The Article distinguishes rhetoric from reality in examining biopiracy allegations from the perspective of national patent laws, as well as international agreements. In addition, the Article explains the underlying conflicts, misconceptions, and historical biases that …

Sexual Harassment: Limiting The Affirmative Defense In The Digital Workplace, Donald P. Harris, Daniel B. Garrie, Matthew J. Armstrong

University of Michigan Journal of Law Reform

Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.

This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the …

Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg

University of Michigan Journal of Law Reform

Judges are the gatekeepers of evidence. Arguably, the most difficult duty for a judicial gatekeeper is to screen the reliability of expert opinions in scientific fields such as medicine that are beyond the ken of most judges. Yet, judges have a duty to scrutinize such expert opinion evidence to determine its reliability and admissibility. In toxic tort cases, the issue of causation-whether the alleged exposures actually caused the plaintiffs injury-is nearly always the central dispute, and determining admissibility of expert causation opinion is a daunting challenge for most judges. We present a comprehensive review of the courts' struggles with the …

An Examination Of Patents, Licensing, Research Tools, And The Tragedy Of The Anticommons In Biotechnology Innovation, Michael S. Mireles

University of Michigan Journal of Law Reform

The continued development of and affordable access to potentially life saving pharmaceuticals, gene therapies and diagnostics is unquestionably a socially important issue. However, crafting government policy to encourage the development of and allowing affordable access to those services and products is difficult. On one hand, the development of those services and products requires a large investment of funds because of the complexity, collaborative nature, and uncertainty of the development of those products and services. Accordingly, investors require the safety of strong and stable patent rights to ensure a return on their investment in the development of a commercial end-product or …

When Nice Guys Finish First: The Evolution Of Cooperation, The Study Of Law, And The Ordering Of Legal Regimes, Neel P. Parekh

University of Michigan Journal of Law Reform

This Note adds to the scholarship in the area of Evolutionary Analysis and the Law (EA). EA is a paradigm that comments on the implications of evolution on the law. EA recognizes that many complex human behaviors that the law seeks to regulate have evolutionary origins that remain relevant today. This Note details how an understanding of the evolutionary basis of cooperation can bring about favorable revisions and reforms in the law.

Following a review of the scientific foundation of EA, this Note sets forth the proposition that humans have an evolutionarily developed tendency to cooperate, an idea that contrasts …

Behavioral Genetics And The Best Interests Of The Child Decision Rule, David J. Herring

University of Michigan Journal of Law Reform

This Article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.

Recent child development studies have shown that so-called "shared environment, "or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and …

Theorizing Behavioral Law And Economics: A Defense Of Evolutionary Analysis And The Law, Neel P. Parekh

University of Michigan Journal of Law Reform

Behavioral law and economics (BLE) provides a steady stream of empirical evidence that counters the predictions of law and economics. Despite this research and data, however, many theorists argue that BLE ultimately fails because it posits no underlying theory. This Note argues that perspectives from evolutionary biology, evolutionary psychology, and the brain sciences can provide the missing motivational theory for BLE's empirical findings. The Note also examines the implications a more consistent and reasoned consideration of evolutionary analysis and the law (EA) has for our legal regime. In theorizing BLE and defending EA, this Note aims to show how evolutionary …

Carte Blanche For Cruelty: The Non-Enforcement Of The Animal Welfare Act, Katharine M. Swanson

University of Michigan Journal of Law Reform

This Note explores both the judicial and administrative underenforcement of the Animal Welfare Act in protecting the welfare of laboratory animals used for purposes of experimentation. Specifically, the Note suggests that judicial underenforcement is borne as a result of the difficulties of lodging a private cause of action under the Act or gaining standing under the alternative statutory scheme of the Administrative Procedure Act. It further suggests administrative underenforcement in describing the promulgated regulations of the Act as inadequate and the lack of self-policing mechanisms. Finally, the Note suggests some ways that enforcement can be made more effective in these …

Daubert's Backwash: Litigation-Generated Science, William L. Anderson, Barry M. Parsons, Drummond Rennie

University of Michigan Journal of Law Reform

In the 1993 landmark case Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court articulated its position on the admissibility of scientific evidence. The Court reasoned that federal judges should rely on the processes scientists use to identify unreliable research, including the process of peer review, to determine when scientific evidence should be inadmissible. In response, lawyers and their clients, seeking to rely on such evidence, have begun funding and publishing their own research with the primary intention of providing support to cases they are litigating. This Article examines the phenomenon of litigation-generated science, how it potentially undermines …

Lengthening The Stem: Allowing Federally Funded Researchers To Derive Human Pluripotent Stem Cells From Embryos, Jason H. Casell

University of Michigan Journal of Law Reform

Recent developments in fetal tissue research and stem cell research have led to dramatic breakthroughs in the search for cures for Parkinson's disease, Alzheimer's disease, diabetes, and a host of neurological disorders. Because this research involves fetal tissue and stem cells from human embryos, many complicated ethical and legal implications surround it. This Note explores the history of fetal tissue research and stem cell research, examines the surrounding ethical and legal issues, looks at the current state of federal law, and concludes that Congress should allow federally funded researchers to derive stem cells from discarded human embryos obtained from in …

Before It's Too Late: Neuropsychological Consequences Of Child Neglect And Their Implications For Law And Social Policy, Janet Weinstein, Ricardo Weinstein

University of Michigan Journal of Law Reform

Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger …

Jury Trial Techniques In Complex Civil Litigation, Ronald S. Longhofer

University of Michigan Journal of Law Reform

Ronald Longhofer, an experienced litigator, discusses the challenges inherent in trying a complex civil case to a jury. He explores aspects of complex litigation that often impede jurors from effectively hearing such cases. In conclusion, he suggests litigation techniques which have proved successful in overcoming such obstacles and effectively translating complex evidence to jurors.

Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg

University of Michigan Journal of Law Reform

Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial …

Calming Aids Phobia: Legal Implications Of The Low Risk Of Transmitting Hiv In The Health Care Setting, American Bar Association Aids Coordinating Committee

University of Michigan Journal of Law Reform

Scientists are concluding that the risk of becoming infected with the virus that causes AIDS based on transmission from an infected health care worker is infinitesimal: in fact, only one health care worker has ever been documented as the source of HN transmission to a patient. This Article sets forth the medical evidence concerning this low risk and argues that legal decision making should incorporate these facts into its analysis of legal problems involving HN-infected health care workers. The Article analyzes three areas of such legal decision making: (1) employment and related credentialing of HN-infected health care workers; (2) liability …