Law Commons^™

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …

After Ftx: Can The Original Bitcoin Use Case Be Saved?, Mark Burge

Faculty Scholarship

Bitcoin and the other cryptocurrencies spawned by the innovation of blockchain programming have exploded in prominence, both in gains of massive market value and in dramatic market losses, the latter most notably seen in connection with the failure of the FTX cryptocurrency exchange in November 2022. After years of investment and speculation, however, something crucial has faded: the original use case for Bitcoin as a system of payment. Can cryptocurrency-as-a-payment-system be saved, or are day traders and speculators the actual cryptocurrency future? This article suggests that cryptocurrency has been hobbled by a lack of foundational commercial and consumer-protection law that …

The Philosophy Of Ai: Learning From History, Shaping Our Future. Hearing Before The Committee On Homeland Security And Government Affairs, Senate, One Hundred Eighteenth Congress, First Session., Margaret Hu

Congressional Testimony

No abstract provided.

Biden's Executive Order Puts Civil Rights Rights In The Middle Of The Ai Regulation Discussion, Margaret Hu

Popular Media

No abstract provided.

Deplatforming, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.

But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common …

Opinion: How Software Stifles Competition And Innovation, James Bessen

Faculty Scholarship

Innovation is not what it used to be, and software is part of the reason. In many industries—industries well beyond Big Tech—dominant firms have built large software-based platforms delivering important consumer benefits, but these platforms also slow the rise of innovative rivals, including productive startups.5 Because access to these platforms is limited, competition has been constrained, creating a troubling market dynamic that slows economic growth.

Two Visions Of Digital Sovereignty, Sujit Raman

Joint PIJIP/TLS Research Paper Series

No abstract provided.

A Trusted Framework For Cross-Border Data Flows, Alex Joel

Joint PIJIP/TLS Research Paper Series

The German Marshall Fund of the United States (GMF), in cooperation with the Tech, Law and Security Program (TLS) of the American University Washington College of Law, and with support from Microsoft, convened a Global Taskforce to Promote Trusted Sharing of Data comprising experts from civil society, academia, and industry to submit proposals for harmonizing approaches to global data use and sharing. Former US Ambassador to the Organisation for Economic Co-operation and Development (OECD) and GMF Distinguished Fellow Karen Kornbluh and Microsoft Chief Privacy Officer and Corporate Vice President Julie Brill co-chaired the taskforce; TLS Senior Project Director Alex Joel …

Cyber Plungers: Colonial Pipeline And The Case For An Omnibus Cybersecurity Legislation, Asaf Lubin

Articles by Maurer Faculty

The May 2021 ransomware attack on Colonial Pipeline was a wake-up call for a federal administration slow to realize the dangers that cybersecurity threats pose to our critical national infrastructure. The attack forced hundreds of thousands of Americans along the east coast to stand in endless lines for gas, spiking both prices and public fears. These stressors on our economy and supply chains triggered emergency proclamations in four states, including Georgia. That a single cyberattack could lead to a national emergency of this magnitude was seen by many as proof of even more crippling threats to come. Executive Director of …

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

Aclp - State Broadband Profile - Tennessee (July 2023), New York Law School

Reports and Resources

No abstract provided.

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Articles

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

Aclp - Further Updated Estimates Of State Bead Allocations - As Of June 16, 2023, New York Law School

Reports and Resources

No abstract provided.

Opaque Notification: A Country-By-Country Review, Lauren Mantel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

On The Danger Of Not Understanding Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Necessity, Proportionality, And Executive Order 14086, Alex Joel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

All Faculty Scholarship

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations April 20-21, 2023, Roger Williams University School Of Law Marine Affairs Institute, The Nature Conservancy

School of Law Conferences, Lectures & Events

No abstract provided.

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

All Faculty Scholarship

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

The Midas Touch: Atuahene's "Stategraft" And Unregulated Artificial Intelligence, Sonia Gipson Rankin

Faculty Scholarship

Professor Bernadette Atuahene’s article, A Theory of Stategraft, develops the new theoretical conception of “stategraft.” Professor Atuahene notes that when state agents have engaged in practices of transferring property from persons to the state in violation of the state’s own laws or basic human rights, it sits at the nexus of illegal behavior and revenue-generating activity for the government. Although there are countless instances of “stategraft,” one particularly salient example is when the state uses artificial intelligence to illegally extract resources from people. This Essay will apply stategraft to an algorithm implemented in Michigan that falsely accused recipients of unemployment …

Marine Law Symposium: Can Offshore Wind Development Have A Net Positive Impact On Biodiversity? Regulatory And Scientific Perspectives And Considerations, April 20-21, 2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Regulating Artificial Intelligence In International Investment Law, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

The interaction between artificial intelligence (AI) and international investment treaties is an uncharted territory of international law. Concerns over the national security, safety, and privacy implications of AI are spurring regulators into action around the world. States have imposed restrictions on data transfer, utilised automated decision-making, mandated algorithmic transparency, and limited market access. This article explores the interaction between AI regulation and standards of investment protection. It is argued that the current framework provides an unpredictable legal environment in which to adjudicate the contested norms and ethics of AI. Treaties should be recalibrated to reinforce their anti-protectionist origins, embed human-centric …

Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones

Honors Projects

DNA dragnets have attracted both public and scholarly criticisms that have yet to be resolved by the Courts. This review will introduce a modern understanding of DNA analysis, a complete introduction to past and present Fourth and Fourteenth Amendment jurisprudence, and existing suggestions concerning similar issues in legal scholarship. Considering these contexts, this review concludes that a focus on privacy and property at once, with a particular sensitivity to the inseverable relationship between the two interests, is Constitutionally consistent with precedent and the most workable means of answering the question at hand.

Jurisgenerative Tissues: Sociotechnical Imaginaries And The Legal Secretions Of 3d Bioprinting, Roxanne Mykitiuk, Joshua Shaw

Articles & Book Chapters

Three-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in …

The Role Of Ethical Principles In Ai Startups, James Bessen, Stephen Michael Impink, Robert Seamans

Faculty Scholarship

Do high-tech startups benefit from developing more ethical AI? AI startups implement policies and take actions to manage ethical issues associated with data collection, storage, and usage and adapt to the norms of their industry. This paper describes these startups' ethics-related actions, including ethical AI policy adoption, and examines how these actions relate to startup performance. We find that merely adopting an ethical AI policy (i.e., a less costly signal) does not relate to increased performance. However, there is evidence that investors reward startups that take more costly preventative pro-ethics actions, like seeking expert guidance, training employees about unconscious bias, …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Vanderbilt Law School Faculty Publications

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …

Using An Evolutionary Approach To Improve Predictive Ability In Social Sciences: Property, The Endowment Effect, And Law, Owen D. Jones, Sarah F. Brosnan

Vanderbilt Law School Faculty Publications

From the perspective of other disciplines, evolutionary approaches more often provide explanation and coherence than they help to solve discrete problems. We believe that more examples of the latter sort will help both with disciplinary synthesis and with the advance of knowledge. Here we describe a 20-year arc of research to demonstrate the problem-solving utility of an evolutionary perspective by focusing, as a case study, on a particular cognitive bias – the endowment effect – that has implications for law. Legal systems often assume that humans make decisions that are substantively rational, consistent, and aimed at maximizing their own wellbeing. …