Law Commons^™

Computational Experimentation, Tabrez Y. Ebrahim

Faculty Scholarship

Experimentation conjures images of laboratories and equipment in biotechnology, chemistry, materials science, and pharmaceuticals. Yet modern day experimentation is not limited to only chemical synthesis, but is increasingly computational. Researchers in the unpredictable arts can experiment upon the functions, properties, reactions, and structures of chemical compounds with highly accurate computational techniques. These computational capabilities challenge the enablement and utility patentability requirements. The patent statute requires that the inventor explain how to make and use the invention without undue experimentation and that the invention have at least substantial and specific utility. These patentability requirements do not align with computational research capabilities, …

Data-Centric Technologies: Patent And Copyright Doctrinal Disruptions, Tabrez Y. Ebrahim

Faculty Scholarship

Data-centric technologies create information content that directly controls, modifies, or responds to the physical world. This information content resides in the digital world yet has profound economic and societal impact in the physical world. 3D printing and artificial intelligence are examples of data-centric technologies. 3D printing utilizes digital data for eventual printing of physical goods. Artificial intelligence learns from data sets to make predictions or automated decisions for use in physical applications and systems. 3D printing and artificial intelligence technologies are based on digital foundations, blur the digital and physical divide, and dramatically improve physical goods, objects, products, or systems. …

When Law Frees Us To Speak, Jonathon Penney, Danielle Citron

Articles, Book Chapters, & Popular Press

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Applying Old Rules To New Tools: Employment Discrimination Law In The Age Of Algorithms, Matthew U. Scherer, Allan G. King, Marko J. Mrkonich

South Carolina Law Review

No abstract provided.

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

Lessons From Literal Crashes For Code, Margot Kaminski

Publications

No abstract provided.

Binary Governance: Lessons From The Gdpr’S Approach To Algorithmic Accountability, Margot E. Kaminski

Publications

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating …

Technology Transfer And The Trips Agreement Are Developed Countries Meeting Their End Of The Bargain?, David M. Fox

UC Law Science and Technology Journal

International trade agreements often integrate provisions requiring the transfer of technology from developed to least-developed countries under the assumption that technological development in the world’s poorest countries will help solve pressing global concerns. At first, supplying tangible hardware and equipment to least-developed countries satisfied these trade obligations. Today, however, modern development theory calls for a broader understanding of “technology” to include knowledge, skills, and human resource development. Article 66.2 of the TRIPS Agreement instructs developed country Members to incentivize domestic enterprises and institutions “for the purpose of promoting and encouraging technology transfer to least-developed country Members.” Least-developed countries protest that …

Defusing A Ticking Time Bomb: The Complicated Considerations Underlying Compulsory Human Genetic Editing, Grant Hayes Frazier

UC Law Science and Technology Journal

Gene editing is a type of genetic engineering that enables scientists to change an organism’s DNA by adding, removing, or altering genetic material at particular locations in the human genome. While these editing technologies are in their infancy, they hold great promise for future applications. They also raise many moral, ethical, and legal questions.

Fast forward 10 years. In utero gene editing is effective, safe, and inexpensive (or covered by insurance). A couple with strong religious views against gene editing decides to procreate despite knowing, via family history, they are both homozygous dominant for the allele that causes Huntington’s disease …

Cryptocurrency And The § 1031 Like Kind Exchange, Eli Cole

UC Law Science and Technology Journal

Cryptocurrency has been called “a fraud” by some and “the next internet” by others. However, since the first Bitcoin was mined in 2009, the growth of the cryptocurrency market capitalization has been exponential—surpassing $800 billion at the beginning of 2018. Not surprisingly, the regulations governing these digital pieces of property have lagged the economic growth. In this Article, I attempt to answer the question: should 26 U.S.C. § 1031 apply to an exchange between cryptocurrencies?

This Article argues that the Internal Revenue Service’s decision to classify cryptocurrency as property, combined with the Securities and Exchange Commission’s hesitancy to classify all …

Health Care Ai: Law, Regulation, And Policy., W. Nicholson Price Ii

Book Chapters

As discussed in previous chapters, artificial intelligence (AI) has the potential to be involved in almost all aspects of the health care industry. The legal landscape for health care AI is complex; AI systems with different intended uses, audiences, and use environments face different requirements at state, federal, and international levels. A full accounting of these legal requirements, or of the policy questions involved, is far beyond the scope of this chapter. Additionally, the legal and regulatory framework for AI in health care continues to evolve, given the nascent stage of the industry.

In this chapter, we offer an overview …

Atrocity Prevention In The New Media Landscape, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Journalists have traditionally played a crucial role in building public pressure on government officials to uphold their legal obligations under the 1948 UN Convention on the Prevention and Punishment of Genocide. But over the past twenty years there has been radical change in the media landscape: foreign bureaus have been shuttered, young freelance journalists have taken over some of the work traditionally done by experienced foreign correspondents, and, more recently, the advent of social media has enabled people in conflict-affected areas to tell their own stories to the world. This essay assesses the impact of these changes on atrocity prevention …

Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer

Vanderbilt Law School Faculty Publications

Whether in response to roboadvising, artificial intelligence, or crypto-currencies like Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial technology (or "fintech") in the post-Crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proven conceptually difficult. Part of the challenge lies in the tradeoffs involved in regulating innovations that could conceivably both help and hurt consumers and market participants alike. Problems also arise from the common assumption that today's fintech is a mere continuation of the story of innovation that has shaped finance for centuries.

This Article …

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

Articles in Law Reviews & Other Academic Journals

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

The Promise And Limitations Of Artificial Intelligence In The Practice Of Law, W. Bradley Wendel

Oklahoma Law Review

No abstract provided.

Artificial Wisdom? A Potential Limit On Ai In Law (And Elsewhere), Joshua P. Davis

Oklahoma Law Review

No abstract provided.

The Future Is ̶B̶R̶I̶G̶H̶T̶ Complicated: Ai, Apps & Access To Justice, Emily S. Taylor Poppe

Oklahoma Law Review

No abstract provided.

When Robots Make Legal Mistakes, Susan C. Morse

Oklahoma Law Review

No abstract provided.

Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley

Faculty Scholarship

Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs’ benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules in comparative negligence for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a …

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Professionally Responsible Artificial Intelligence, Michael Hatfield

Articles

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI …

The Immediacy Of Genome Editing And Mitochondrial Replacement, Raymond C. O'Brien

Scholarly Articles

After human DNA was first defined in 1953, the parallel science of assisted reproductive technology achieved a successful human birth through in vitro fertilization in 1978. Science then went on to facilitate gestational surrogacy, banking human reproductive materials, such as embryos, and greater opportunities for couples and individuals to become parents. Fertility clinics were established throughout the world to help persons and couples achieve parenthood, contributing to a steady increase in babies born through assisted reproductive means. Gradually, both federal and state laws in the United States were enacted to collect data from the fertility clinics, mandate insurance coverage of …

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit …

The Golden Claims: Necessary Support For Nonprovisional Application Prior Art References To Be Granted Provisional Application Filing Dates During Inter Partes Review Proceedings, 18 J. Marshall Rev. Intell. Prop. L. 326 (2019), Madison Makeever

UIC Review of Intellectual Property Law

Whether to beat an impending disclosure, disclose the most information possible, or simply to get the earliest possible filing date, provisional patent applications are a beneficial way to protect your patent rights. The few formal and statutory requirements allow provisionals to be prepared on a rush basis. The Federal Circuit held in 2017 that published nonprovisional applications can constitute prior art as of its provisional filing date but only as to elements in the application. However, ambiguity regarding published applications in the Federal Circuit’s 2015 precedent for awarding a patent it’s provisional filing date may lead to increased patent invalidation …

There Has Been An Infringement Of My Work And My Circuit Does Not Allow Me To Sue! The Time Has Come To Hash-Out The Federal Circuit Court Discrepancy On Copyright Registration, 18 J. Marshall Rev. Intell. Prop. L. 344 (2019), Thomas Placzek

UIC Review of Intellectual Property Law

The time has come to relieve the ambiguity created by the continued lack of consensus regarding the proper interpretation of 17 U.S.C. § 411(a). The persistent split amongst the various Federal Courts regarding the meaning of § 411(a)’s registration requirement allows some fortunate artists to immediately enforce their rights in a number of jurisdictions, while artists from other jurisdictions are prohibited from immediately enforcing the same rights. Several circuit and district courts subscribe to the “application approach,” while others employ the “registration approach.” This comment delves into the rationale behind the respective approaches, and discusses the arguments made for and …

Data Generated By New Technologies And The Law: A Guide For Massachusetts Practitioners, Andrew Sellars

Faculty Scholarship

This brief paper, created as part of a training on new technologies and evidence for MCLE New England, outlines the standards used to compel disclosure of information under the Stored Communication Act, and reviews the types of data stored on various consumer devices and their likely custodians, as well as cases and notes relevant to each devices. The paper serves as a quick introduction and checklist for those considering gathering information from these devices in the course of investigations in Massachusetts. The devices outlined include cell phones, social media platforms, secure messaging services, fitness trackers, home assistant devices (or "smart …