Law Commons^™

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Targeting Children: Liability For Algorithmic Recommendations, Michal Lavi

American University Law Review

We live in the algorithmic society, characterized by massive digital surveillance and data collection by private companies exploiting human information vulnerabilities for profit. The infrastructure of free expression translates into an infrastructure of digital surveillance. This model, dubbed “surveillance capitalism,” includes massive personalized algorithmic targeting that departs from human speakers, allowing a level of influence never witnessed before in scale, scope, or depth.

Personalized targeting can garner many benefits, as it allows individuals to find content that interests them without needing to invest energy in seeking out that content. However, personalized targeting can also cause tremendous harm because it can …

Blacklisting Or Banning Technologies That Scare Us: Ai, Cryptocurrencies, And More, Nizan Geslevich Packin, Hadar Yoana Jabotinsky

American University Law Review

Policymakers often play a critical role in regulating the use and advancement of technology. Their decisions can have significant positive impacts on the development, adoption, and use of various technologies, but also negative ones if they decide to limit or even block a certain technology. Italy’s temporary banning of the Generative Artificial Intelligence (GenAI) platform ChatGPT, much like New York City’s Department of Education, demonstrates administrations’ and policymakers’ reliance on blacklisting and banning.

Blacklisting and banning are often used interchangeably. Nevertheless, in the context of regulation, the terms are different and used for different purposes, and it is key to …

Securing Workers' Futures: Why Replacing Union Workers With Artificial Intelligence In Creative Professions Is The New Subcontracting, Katherine J. Kyriakoudes

American University Law Review

Artificial intelligence poses a significant threat to unionized professionals in creative industries, particularly as employers may be tempted to replace unionized workforces with artificial intelligence. However, Supreme Court precedent and the National Labor Relations Act paves a path forward for unionized workers in creative fields to safeguard themselves from job displacement through collective bargaining.

This Comment argues that replacing a unionized workforce with artificial intelligence is analogous to subcontracting under Fibreboard Paper Products Co. v. NLRB, First National Maintenance Corp. v. NLRB, and congressional intent behind the National Labor Relations Act. Consequently, artificial intelligence should be a mandatory subject of …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Computers, Credit, And Human Dignity, Jonathan Weinberg

SMU Science and Technology Law Review

Credit scores determine a person’s life chances. The credit scores we’re all used to, calculated by Equifax, Experian, or TransUnion, take as inputs a person’s payment history, loans, current debt, and similar financial information. But that world is changing. Modern alternative data models for credit scoring can go so far as to include an individual’s educational record, criminal history, shopping behavior, or telephone patterns. Activists, regulators, and scholars have expressed serious concerns about these new credit systems. Do they classify applicants on unfair or arbitrary grounds? Do they perpetuate, or even amplify, bias and pre-existing inequality?

Participants in this conversation …

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Trademarks On The Blockchain: Nft Domains And Collisions, Jelena Laketić

Michigan Technology Law Review

Blockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.

This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs …

A Series Of Historical Accidents, Christopher S. Storm

Michigan Technology Law Review

The Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit …

Innovation Originators, Tabrez Y. Ebrahim, Rafeel Wasif

Michigan Technology Law Review

Asian Americans are one of the most striking and undertheorized ethnic groups in the field of innovation. While a prolific ethnic group when it comes to being named as inventors on U.S. patents, very little has been written on this observation, perhaps because of previously limited datasets and unwieldy data analysis on ethnic backgrounds about patenting at the United States Patent & Trademark Office (USPTO). Research on inventor diversity and ethnicity in innovation has begun to explore some ethnic groups, but a more holistic account should focus on one particular overlooked group. Recently, entrepreneurship studies concerning ethnicity have shown that …

An Artificially Intelligent Approach To Medical Device Monitoring, Cristian A. Rodriguez

St. Thomas Law Review

The integration of artificial intelligence (Al) in medical devices, particularly the subset of Al technologies known as machine learning, has sparked a new era of precision and efficiency in healthcare. AI/ML-enabled medical devices are proving to be invaluable as they have already improved patient diagnosis, treatment, and disease prediction. As machine learning continues to be adopted in medical devices, the U.S. Food and Drug Administration (FDA) continues to receive more marketing submissions and pre-submissions for AI/ML-enabled medical devices, a trend that is expected to increase over time. While the FDA has made significant progress in proposing regulatory frameworks that will …

The Twenty-Six Words That Created The Internet… And Then Maybe, Kind Of, Destroyed Society: Understanding And Reforming Section 230 Of The Communications Decency Act, Nandor F. R. Kiss

Michigan Technology Law Review

In 1996, Congress passed Section 230 of the Communications Decency Act, a twenty-six-word law that immunized early internet companies from civil immunity arising from hosted, third-party content. At the time, the law was necessary to allow fledging companies to innovate without fear of bankruptcy-inducing lawsuits and ultimately helped to create the internet as we know it. To the extent this civil immunity has contributed to the vast technological advances over the past three decades, it should be lauded. However, the internet has dramatically changed in the past thirty years, and the law has been relied upon to protect companies in …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

The Rights Of Donor-Conceived Persons In Colorado: America's First Foray Into Abolishing Anonymous Gamete Donation, Madeline Ash

Indiana Law Journal

On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United …

The Criminal Metaverse, Eldar Haber

Indiana Law Journal

Virtual worlds are no longer science fiction. New technologies that promise a world lacking physical or mental boundaries are finally becoming a reality. Commonly referred to as the metaverse, this innovative technology opens a world of opportunities for individuals everywhere to experience an almost unlimited virtual dimension where they can play, work, own property, engage in sexual activities, and fulfill their dreams. Unlike previous virtual worlds, the metaverse could be a gamechanger as it offers an immersive experience. It feels authentic to the users and will become even more realistic with advancements in haptic technology. With its benefits, the technology …

A Theory Of Genetic Dimensions In The Law, Yaniv Heled, Liza Vertinsky, Ana Santos Rutschman

Indiana Law Journal

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

Framing Online Speech Governance As An Algorithmic Accountability Issue, Mehtab Khan

Indiana Law Journal

Automated tools used in online speech governance are prone to errors on a large-scale yet widely used. Legal and policy responses have largely focused on case-by-case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino

IP Theory

The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second …

The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang

IP Theory

The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.

Will the copyright regime continue …

Comparative Intellectual Property & Religion, Tabrez Y. Ebrahim

IP Theory

This Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy …

Enhancing 21 U.S.C. §§ 355, 356, And 360 To Encompass Artificial Intelligence-Based Drug Design And Manufacturing Methods, Aj Tsang

Michigan Technology Law Review

Despite newfound attention to how artificial intelligence (AI) may accelerate pharmaceutical development, federal regulators may find that current statutes are ambiguous or silent about their applicability to AI-based drug design and manufacturing methods. This poses a serious problem in the era of Loper Bright and the Major Questions Doctrine. As federal agencies struggle to adjust to courts’ growing demand for Congress to craft clear, explicit, and express delegations of authority, this note develops a statutory framework in which the Food and Drug Administration (FDA) would have more flexibility to regulate the use of AI in advanced drug manufacturing. Guided by …

Keep The Driver In Driverless Cars: Let's Take A Few Cues From The Aviation Industry, Tifani Sadek

Journal of Law and Mobility

As a law professor who studies mobility, I spend many waking hours thinking about fully automated vehicles, those cars that drive themselves without any need for a human operator. As a true believer in this technology, I think the widespread deployment of these vehicles will get more people home safely, give commuters their time back, and reduce the amount of carbon dioxide in our environment. However, lately, I worry whether this will ever happen. A recent Pew study showed that only 26% of the U.S. public believes that self-driving cars are a good thing for society, which is an all-time …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …

Governing Generative Ai, Daryl Lim

Faculty Scholarship

This Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as …

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

Faculty Articles

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence ("Al") while also establishing safeguards across the federal government. The Executive Order marked the U.S. government's largest move forward related to the regulation of Al. The Order also represents the government's latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Faculty Articles

There are myriad ways that discrimination and bias can combine to profoundly limit inventor participation in the patent process. The utilitarian purpose of patents is to incentivize inventors to invent and disclose, so it makes sense to incentivize as large and as diverse a group as possible in order to maximize the likely output of innovative activity. This incentive is important in terms of our geopolitical aspirations as a country, but hopefully also because of our democratic commitment to provide opportunities for flourishing and reaching one's potential that are available to all.

Don't Kill The Baby! The Case For Ai In Arbitration, Michael J. Broyde, Yiyang Mei

Faculty Articles

Since the introduction of Generative AI (GenAI) in 2022, its ability to simulate human intelligence and generate content has sparked both enthusiasm and concern. While much of the criticism focuses on AI’s potential to perpetuate bias, create emotional dissonance, displace jobs, and raise ethical questions, these concerns often overlook the practical benefits of AI, particularly in legal contexts. This article examines the integration of AI into arbitration, arguing that the Federal Arbitration Act (FAA) allows parties to contractually choose AI-driven arbitration, despite traditional reservations.

This article makes three key contributions: (1) It shifts the focus from debates over AI’s personhood …

Privacy's Algorithmic Turn, Maria P. Angel

Scholarly Works

As algorithms have taken over contemporary society, a portion of American privacy law scholars has gradually transformed information privacy into a post- algorithmic concept. Besides enabling individuals to protect their autonomy and attain certain collective benefits, these scholars now expect information privacy to act as the government's tool to protect society against data extraction and its consequent power asymmetries. This Article presents evidence of this transfor- mation-here referred to as "privacy's algorithmic turn"-, identifying its two main features: (1) a change in what is usually considered privacy harms, and (2) a transformation of the tools proposed to protect privacy. Additionally, …