Law Commons^™

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

Tribes And Ai: Possibilities For Tribal Sovereignty, Adam Crepelle

Faculty Publications & Other Works

Artificial Intelligence (AI) has permeated every facet of modern existence. Governments across the globe are exploring its applications and attempting to establish regulatory frameworks. Numerous scholars have proffered recommendations for governing AI at the local, national, and international levels. However, as is often the case, Indian tribes have been neglected in AI policy discussions. This oversight is significant because the 574federally recognized tribes are sovereigns with their own judicial, education, and healthcare systems. Due to their relatively small populations and geographic isolation, tribes stand to benefit significantly from the services AI can perform. Moreover, tribes are uniquely well suited to …

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Artificial Intelligence Is Like A Perpetual Stew, Nathan Reitinger

American University Law Review

Artificial intelligence is inescapable. It is in our phones, fridges, and most of the businesses we engage with use it to “improve” their services. From deciding on what YouTube video to watch next to driving vehicles or firing weapons, artificial intelligence is a linchpin in our society. But what is artificial intelligence? And, more importantly, why does that matter? It matters because we are currently unprepared to deal with the paradigm-shifting legal issues brought about by artificial intelligence. And without this understanding, we are nearly certainly going to make mistakes. The bright side is that artificial intelligence is not complicated. …

Venture Capital Culpability: Potential Liabilities For Venture Capital Investment Of Fraudulent Portfolio Companies, Calzia, Kyle D.

Santa Clara High Technology Law Journal

Due to the possible detrimental effects of broadening liability for venture capitalists, any change would need to balance the dangers of limiting economic growth with the public policy motives of protecting shareholders. An expansion of securities law in Section 10b and Rule 10b-5 could open venture firms to liability as aider-abettors to securities fraud, specifically when venture firms continue to offer financial or directional assistance after having reason to know of securities fraud by their portfolio companies. Additionally, stricter examinations of agency relationships and director duties that are required from venture firm partners that sit on portfolio boards could see …

Venture Capital's Esg Problem, Ryan A. Ashburn

Law Student Publications

Venture capital (“VC”) is repeatedly described as one of the “crown jewels” of the U.S. economy for its role in financing startups and innovation. However, recent corporate scandals, including fraud, have exposed a darker side of the VC industry and the startups in which venture capitalists (“VCs”) invest. For example, Theranos received $686 million in VC funding yet proved to be nothing more than a “house of cards” once it came to light that Theranos falsified blood test results. When Theranos founder Elizabeth Holmes was convicted of fraud, many VCs tried to distance themselves, saying Theranos was an exception and …

The Battle Between Open Markets And National Security: How Limiting Investments Into Foreign Technology Might Be Hurting National Security Goals, Alexandra Van Cleef

Catholic University Journal of Law and Technology

No abstract provided.

Breaking Algorithmic Immunity: Why Section 230 Immunity May Not Extend To Recommendation Algorithms, Max Del Real

Washington Law Review Online

In the mid-1990s, internet experiences were underwhelming by today’s standards, despite the breakthrough technologies at their core. When a person logged on to the internet, they were met with a static experience. No matter who you were, where you were, or how you accessed a particular website, it rendered a consistent page. Today, internet experiences are personalized, dynamic, and vast—a far cry from the digital landscape of just a few decades ago. While today’s internet is unrecognizable compared with its early predecessors, many of its governing laws remain materially unaltered. In particular, section 230 of the Communications Act, which passed …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

Loot Boxes May Exploit Gamers, But Their Sale Does Not Constitute Unlawful Gambling, John J. Chung

Roger Williams University Law Review

No abstract provided.

Foreword: Artificially Intelligent Innovation And Justice, Carla L. Reyes

SMU Science and Technology Law Review

No abstract provided.

Algorithmic Adjudication And Constitutional Ai—The Promise Of A Better Ai Decision Making Future?, April G. Dawson

SMU Science and Technology Law Review

Algorithmic governance is when algorithms, often in the form of AI, make decisions, predict outcomes, and manage resources in various aspects of governance. This approach can be applied in areas like public administration, legal systems, policy-making, and urban planning. Algorithmic adjudication involves using AI to assist in or decide legal disputes. This often includes the analysis of legal documents, case precedents, and relevant laws to provide recommendations or even final decisions. The AI models typically used in these emerging decision-making systems use traditionally trained AI systems on large data sets so the system can render a decision or prediction based …

Liability Rules For Automated Vehicles: Definitions And Details, William H. Widen, Philip Koopman

SMU Science and Technology Law Review

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

Generative Ai In The Attorney-Client Relationship: An Exercise In Critical Revision And Client Management, Michael L. Smith

SMU Science and Technology Law Review

Discussions of generative AI in legal practice and education often assert that this technology will lead to a sea change in legal writing, research, and revision. While some of the more breathless proclamations deserve skepticism, there’s little doubt that this technology may generate new forms of headaches for those in the legal field—particularly once it’s in the hands of clients or opposing counsel who wish to use this technology to save the time, money, and effort required for complex legal tasks.

This essay proposes an exercise template for law students that illustrates how generative AI technology may be misused or …

Solar Eclipses And The Law, Chad Marzen, Michael Conklin

SMU Science and Technology Law Review

This Article provides a comprehensive overview of the legal issues that appear with a solar eclipse. These include the sale of defective or fake eclipse glasses, vehicle accidents, liability claims for personal injuries against school districts, as well as questions involving the freedom of religion. Finally, this Article concludes by considering the juxtaposition between a perennial event such as a solar eclipse and the evolving nature of law.

Tailoring Biometric Innovation To Privacy Law In The Retail Industry, Bailey White

SMU Science and Technology Law Review

Biometric data technology is trending in retail. Retailers utilize biometric data to improve their bottom line through virtual try-on technology (VTOT), contactless payment methods, fingerprint scanners, and more—albeit at potentially steep prices. Many types of biometric technology used in retail fall under strict U.S. state privacy laws, exposing businesses to serious legal and financial consequences. This Comment provides an analysis of the current state of biometric data privacy law in the U.S., focusing on Illinois’ Biometric Information Privacy Act (BIPA), California’s Consumer Privacy Act (CCPA), Privacy Rights Act (CPRA), and more. This Comment also identifies proposed legislation, relevant case law, …

Ethics Of Innovation: A Framework For Responsible Innovation Governance, Nicole Morris

SMU Science and Technology Law Review

Over the past several years, startups that once seemed destined for greatness have failed or collapsed because of fraud committed by the founders. Most notable are the Theranos and FTX business collapses, which culminated in the convictions of two infamous entrepreneurs, Elizabeth Holmes and Sam Bankman-Fired, respectively. Startup innovators are not alone when it comes to morally dubious behavior. According to Retraction Watch, nearly 5000 papers published in science & engineering journals were retracted in 2022. Research misconduct allegations eventually led to the resignation of Stanford University President Marc Tessier-Lavigne in July 2023. The research scandal at Stanford received lots …

The Game-Changer: Legal Issues Surrounding Wearable Technology In Sports, Jack Vande Berg

SMU Science and Technology Law Review

Athletes and teams are always seeking to gain a competitive edge, and the emergence of wearable technology has provided them with biometric data that provides new insights into performance. The market for wearable technology has been growing at a rapid pace in recent years and is projected to continue on an upward trajectory through the end of the decade. Governing bodies of sport at a professional and amateur level have adapted regulations for the use of this new technology and the data it produces. This article provides an overview of these current regulations, and then discusses three pressing legal issues. …

Neither Here Nor There: Redefining “Presence” For A Virtual Criminal Justice System, Brandon M. Draper

SMU Science and Technology Law Review

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials …

Getting Real About Protecting Privacy, Scott Skinner-Thompson

Publications

No abstract provided.

Voices In, Voices Out: Impacted Stakeholders And The Governance Of Ai, Margot Kaminski

Publications

This Essay addresses reasons for impacted stakeholder involvement in AI governance, ranging from democratic accountability norms to principles of regulatory design. It evaluates several recent examples of both soft and hard law, noting a range of examples of impacted stakeholder participation. It closes with a critique: none of these laws adequately contemplates how to craft transparency and provide expertise so as to meaningfully empower impacted stakeholders.

Section 230'S Debts, Blake Reid

Publications

Much attention has been paid to the unknown First Amendment permissibility of the government regulating social media platforms' carriage practices. The Supreme Court's impending resolution of the NetChoice cases poses a high-stakes First Amendment question: "Can the government permissibly dictate what types of content platforms publish?"

But how did the First Amendment stakes in NetChoice get so high? This Article identifies a long-standing gap in the Supreme Court's First Amendment jurisprudence for platform regulation following its decision in Reno v. ACLU. This Article attributes that gap to the accumulation of both interpretive and legislative debts by Section 230 of the …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Unblocking The Chain: Leveraging Mediation And Negotiation In Crypto Exchange User Disputes, Jane Perov

Cardozo Journal of Conflict Resolution

No abstract provided.

Artificial Intelligence And Mediation Ethics, Zachary R. Calo

Cardozo Journal of Conflict Resolution

Artificial intelligence ("Al") presents many opportunities to improve the efficiency, effectiveness, and accessibility of mediation. More than that, it has potential to transform the nature of how mediation is practiced and what mediation is. While Al might not yet play a significant role in many mediations, there is widespread recognition that the technology is disrupting many established dispute resolution practices. What mediation will look like on the other side is unclear, but it will not be the same.

Squatters Squabbles: The Use Of Mediation To Provide Beneficial Solutions To Adverse Possession Claims In New Jersey, Bayla Zohn

Cardozo Journal of Conflict Resolution

In our society, law is a complex and ever-evolving field, constantly adapting to fit our needs. Yet, there are certain legal matters we would expect to have clear and obvious resolutions. Property ownership should be simple and unambiguous, governed by "established legal rules and precepts." Examine a deed, survey the stated legal owner of the tract of land, and your answer should be uncomplicated. Yet, there are a multitude of complex laws that allow individuals to obtain legal ownership of land in a seemingly illicit fashion.

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …