Law Commons^™

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

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 …

Less Discriminatory Algorithms, Pauline Kim, Emily Black, John Logan Koepke, Solon Barocas, Mingwei Hsu

Scholarship@WashULaw

Entities that use algorithmic systems in traditional civil rights domains like housing, employment, and credit should have a duty to search for and implement less discriminatory algorithms (LDAs). Why? Work in computer science has established that, contrary to conventional wisdom, for a given prediction problem there are almost always multiple possible models with equivalent performance—a phenomenon termed model multiplicity. Critically for our purposes, different models of equivalent performance can produce different predictions for the same individual, and, in aggregate, exhibit different levels of impacts across demographic groups. As a result, when an algorithmic system displays a disparate impact, model multiplicity …

Digital Rummaging, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes.

The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about “reasonable expectations of privacy” and “trespass” searches. While the Supreme Court has acknowledged that “digital is different,” it has not yet provided a coherent …

The Implications Of Artificial Intelligence In The Criminal Justice System, Natalie Garay

Honors Undergraduate Theses

This thesis focuses on artificial intelligence's recent implications on the criminal justice system regarding its admissibility as evidence in civil and criminal cases. One of the main concerns surrounding artificial intelligence is determining the validity of AI application; application refers to the accuracy "AI measures, classifies, or predicts what it is designed to" (Article: Artificial Intelligence as Evidence by Paul W. Grimm, Maura R. Grossman & Gordon V.Cormack.(https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1349&context=njtip). Privacy law will also be analyzed in this analysis. Is evidence recorded without the individual's consent or knowledge acceptable in determining an individual's guilt? This analysis will primarily focus on …

Lost In Translation: The Limits Of Explainability In Al, Hofit Wasserman-Rozen, Ran Gilad-Bachrach, Niva Elkin-Koren

Cardozo Arts & Entertainment Law Journal

As artificial intelligence becomes more prevalent, regulators are increasingly turning to legal measures, like "a right to explanation," to protect against potential risks raised by AI systems. However, are eXplainable AI (XAI) tools-the artificial intelligence tools that provide such explanations-up for the task?

This paper critically examines XAI's potential to facilitate the right to explanation by applying the prism of explanation's role in law to different stakeholders. Inspecting the underlying functions of reason-giving reveals different objectives for each of the stakeholders involved. From the perspective of a decision-subject, reason-giving facilitates due process and acknowledges human agency. From a decision-maker's perspective, …

The Fall Of Z-Library: The “Burning Of The Library Of Alexandria” Or Protection For Authors Against Ai Companies, Lisa Silveira

SMU Science and Technology Law Review

The development and advancement of artificial intelligence (“AI”) is changing the way we use technology while creating an ongoing battle between media and technology companies. With AI companies gathering data from the internet to train programs like ChatGPT, authors have growing concerns about unpermitted use of their work when pirated copies of their books exist illegally online through shadow libraries. This article examines the popular shadow library known as Z-Library and the views of its proponents and opponents. In addition, this article will discuss the training process AI companies use and the data sets containing content from shadow libraries. While …

A Hard Pill To Swallow: Privacy Implications Of Direct-To-Consumer Prescription Drug Services, Varsha Challapally

SMU Science and Technology Law Review

This case note discusses the emergence and popularity of direct-to-consumer prescription drug services and evaluates their privacy implications on consumers. Minimal regulation exists regarding direct-to-consumer prescription drug services, and patient privacy and data protection laws are also limited. Proponents of these services claim that they allow certain prescription drugs to be available to consumers without the hassle and logistics of health insurance and making and attending medical appointments, effectively empowering individuals to take control of their own health. Alternatively, critics claim that direct-to-consumer prescription drug services are operated by private companies that are not always required to be compliant with …

Unveiling The Dark Side Of Innovation: Sustainability, Cobalt Mining, And Modern-Day Slavery, Kaitlin Schleich

SMU Science and Technology Law Review

As the need and demand for sustainability come to the forefront of innovative efforts by technology companies, the use of rechargeable batteries has only become more prominent. A critical mineral in the manufacture of such batteries is cobalt. Looking deeper into how manufacturers get their hands on cobalt exposes the troubling cobalt-mining practices largely taking place within the Democratic Republic of Congo (DRC). This article dives into the underbelly of the cobalt-mining industry, revealing the egregious human-rights abuses occurring in the DRC and examining the current legal and ethical landscape surrounding cobalt mining around the world. In both small-scale artisanal …

If Held Holds: Held V. Montana And The Future Of Constitutional Environmental Litigation, Leonora Owsley

SMU Science and Technology Law Review

The State of Montana is one of three states whose constitutions presently contain a “green amendment[.]” These amendments, enshrined in their respective Bills of Rights, protect a citizen’s fundamental right to a clean and healthy environment, ideally ensuring that the state’s government cannot infringe upon that right. However, following the green amendment’s adoption in 1972, Montana’s law still prioritized its extractive energy and hard rock mining industries over its citizens’ environmental rights. Now, that landscape is beginning to change. In 2011, Montana adopted an amended State Energy Policy Act, which expressly forbade its agencies from considering the effects of climate …

Navigating The Frontiers Of Medtech, Benjamin Sundholm

Faculty Publications

The medical community is increasingly focused on the rise of adaptive and opaque artificial intelligence tools. These systems improve over time but produce results through complex calculations that are difficult for humans to fully understand. Although promising, these features challenge existing legal doctrines. To date, efforts to overcome these challenges have been too fragmented and limited in scope. As a result, the full promise of adaptive and opaque artificial intelligence systems remains untapped.

This Article proposes a framework for unleashing the potential of these systems through a blend of forward- and backward-looking reforms. The ex ante feature of my framework …

Taxing Wealth: A Comparative Analysis Of National Wealth Taxes And How A Federal Wealth Tax Can Overcome Administrative Challenges, Jason Nadboy

Cardozo International & Comparative Law Review

The note advocates for the implementation of a progressive federal wealth tax in the United States to address wealth inequality and generate revenue for social programs. It argues that while administrative challenges exist, they can be overcome by learning from international examples and implementing robust enforcement mechanisms.

Tackling The Thicket: A Comparative Analysis Of Biologic Drugs And Biosimilars In The United States And Abroad, Lauren Cutler

Cardozo International & Comparative Law Review

The note examines the legal and regulatory landscape surrounding biologic drugs and biosimilars in the United States and Europe, focusing on patent protections, litigation trends, and the impact of biosimilar competition on drug pricing. It highlights the challenges posed by patent thickets and evergreening strategies employed by brand-name biologic manufacturers, which delay biosimilar market entry and maintain high drug prices. The analysis underscores the differences in regulatory frameworks and market dynamics between the U.S. and Europe, emphasizing the need for policy reforms to enhance competition and affordability in the biologic market.

Always A Suspect: Law Enforcement's Violative Use Of Geofence Warrants And Geolocation Data In Criminal Investigations And Proceedings, Aaron A. Bengart

Cardozo International & Comparative Law Review

The note argues that geofence warrants, used by law enforcement to obtain location data from tech companies, pose significant Fourth Amendment concerns. It advocates for U.S. legislation similar to the U.K.'s to balance privacy rights with law enforcement needs, emphasizing the need for checks to prevent abuse and protect citizens from unreasonable searches.

Regulating Cryptocurrency: A Comparative Analysis Of U.S. And Eu Approaches, Xander Xueyang Peng

Cardozo International & Comparative Law Review

The note compares the regulatory approaches of the U.S. and the EU regarding cryptocurrency, focusing on sanctions and anti-money laundering (AML). It argues that while the EU has implemented a comprehensive regulatory framework, the U.S. relies on fragmented enforcement actions and lacks a unified approach. The EU's structured regulations, such as the Markets in Crypto-Assets (MiCA) framework, are more effective in addressing the challenges posed by cryptocurrency, including traceability and compliance. The note advocates for the U.S. to adopt a more robust regulatory framework, including know-your-customer (KYC) requirements and stricter AML measures, to enhance accountability and security in the crypto …

(In)Dependence Day: Why The Modern Streaming Industry Requires Modern Antitrust Enforcement, Samuel Kahn

Cardozo Arts & Entertainment Law Journal

The note argues that the contemporary streaming industry, dominated by a few major platforms, mirrors the pre-Paramount era's anticompetitive practices, necessitating a reexamination of antitrust laws to address oligopolistic structures, protect independent creators, and ensure consumer access to diverse content. It contends that the repeal of the Paramount Decrees and the failure of current antitrust frameworks to adapt to the streaming industry's unique challenges have allowed media giants to grow unchecked, stifling competition and innovation.

Deceptive By Nature: A Model For Regulating Native And Embedded Advertising In The Contexts Of Children's Audiences, Zach Cihlar

Cardozo Arts & Entertainment Law Journal

The note advocates for enhanced regulatory measures to protect children from deceptive native and embedded advertising in digital media. It emphasizes the need for the Federal Trade Commission (FTC) to expand its regulatory framework to classify such advertising as deceptive, leveraging existing laws like the Federal Trade Commission Act (FTCA) and the Children's Online Privacy Protection Act (COPPA). The proposed model suggests a combination of stricter regulations, parental involvement through technology, and strengthened self-regulatory mechanisms to address the challenges posed by modern advertising formats.

Can Chatgpt And The Like Be Your Co-Authors?, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

On November 30, 2022, OpenAI released an AI based chatbot called ChatGPT (Generative Pre-trained Transformer). This AI system uses natural language processing (NLP) techniques to generate written text by learning the patterns and structures of natural language. ChatGPT is a versatile chatbot with the ability to write speeches, news articles, and essays either wholly or partially. Some users acknowledge ChatGPT as a co-author of the generated text, while others only acknowledge its use in writing the document. In fact, this issue became so pressing in academia that Springer Nature, the world's largest academic publisher, announced that software like ChatGPT cannot …

Service Of Process Via Nft Airdrops: The Pathway To Private Litigation For Injured Web3 Plaintiffs, Sophia Dudgeon

Cardozo Arts & Entertainment Law Journal

The note explores the evolving landscape of legal process in the digital age, focusing on the use of blockchain technology and NFTs for serving legal notices. It argues that courts are increasingly adapting traditional due process principles, such as those established in Mullane v. Alabama, to accommodate emerging technologies. The analysis highlights the landmark case LCX AG v. 1.274M U.S. Dollar Coin, where a court approved serving process via NFT airdrop, demonstrating how technological innovations can enhance access to justice in digital asset disputes. The author advocates for courts to embrace expansive interpretations of alternative service methods to …

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Panel 1: Copyright Law, Michael W. Carroll, Peter Karol, Christopher Sprigman, Jacob Noti-Victor

Cardozo Arts & Entertainment Law Journal

The Warhol v. Goldsmith case has reshaped the interpretation of fair use in copyright law, emphasizing market competition and the commercial purpose of the use. The Supreme Court's decision focused on the commercial licensing of Warhol's work, highlighting the importance of assessing whether the use competes with the original work's market. This shift could influence future cases, particularly in technology and art, by potentially altering how transformative use and market competition are evaluated.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

From The Editor, Sydney Weigert

Colorado Technology Law Journal

No abstract provided.

Table Of Contents, Colorado Technology Law Journal

Colorado Technology Law Journal

No abstract provided.

Fixing Algorithmic Pricing? Competition Concerns And Solutions, Henry Hauser

Colorado Technology Law Journal

No abstract provided.

A Portfolio Approach To Trusted Intermediaries For Online Content And Conduct, David Sullivan

Colorado Technology Law Journal

No abstract provided.

Rise Of The Knowmebots: Promoting The Two Dimensions Of Al Agency, Richard S. Whitt

Colorado Technology Law Journal

No abstract provided.

Govtech Stack - Building And Buying Towards Digital Sovereignty, Smitha Krishna Parsad

Colorado Technology Law Journal

No abstract provided.

How To Connect The Unconnected: Broadband Policy In Colorado, Nicole Genevieve Ela

Colorado Technology Law Journal

No abstract provided.