Law Commons^™

An Introduction To Personal Growth Bets: Using Contract Law To Lose Weight And Quit Smoking, Max Raskin, Jack Millman

Notre Dame Journal on Emerging Technologies

Self-improvement is hard. Whether losing weight or quitting smoking, individuals have a difficult time honoring their commitments, especially if the only person they are disappointing is themselves. In this Article, we introduce a new legal mechanism for incentivizing personal growth. We describe this mechanism as a personal growth contract, which allows an individual to make an enforceable agreement with either a counterparty or himself with the aim of self-improvement. We propose the use of smart contracts to help execute unilateral personal growth contracts. Our conclusion is that personal growth contracts should be presumptively legal, provided they do not violate some …

The Code Of Life And Death, Braden R. Leach

Notre Dame Journal on Emerging Technologies

Biotechnology is advancing at an astonishing clip, but our safeguards are decades behind. Given new technologies and economies of scale, it is possible for nefarious actors to assemble deadly viruses from scratch using synthetic DNA ordered off the internet. The Select Agents statute helps to prevent malicious actors from acquiring dangerous pathogens, but the Department of Health and Human Services has interpreted it to not cover synthetic DNA. Recognizing the gap, HHS issued guidance recommending that gene synthesis companies verify their customers to ensure their legitimacy and screen genetic sequences for matches to pathogen sequences. Unsurprisingly, voluntary guidance has not …

The High Cost Of Pharmaceutical Acquisitions: Increasing Social Welfare Or Furthering Inequality?, Timothy J. Haltermann

Notre Dame Journal on Emerging Technologies

This note will argue that government and regulatory authorities should focus on easing access to downstream innovation by broadening research exemptions to patent infringement. Part I of this note will focus on the current state of patent protection and exclusivity afforded to pharmaceutical companies. Part II will discuss incentives created that lead rational actors to engage in M&A instead of through internal R&D. Part III will address the development of innovation as a standalone theory of harm in merger review, and the fallacies associated with labeling certain transactions as “killer acquisitions.” Finally, Part IV of the note will look at …

A Sleeping Giant: Mhelath Applications, The Gdpr, And The Need For Federal Privacy Regulation In The United States, Kali Peeples

Notre Dame Journal on Emerging Technologies

An analysis of privacy regulation concerning mHealth apps is a multifaceted process that requires the examination of changes within not only the healthcare space but also the technological world, as well as the legislative history and intent of various nations.The main issue being addressed in this paper is whether the United States should create nationwide legislation that directly relates to mHealth data protection or continue with a self-regulatory method. Part I focuses on the development and rapid creation of mHealth apps within the past decade. Part II seeks to illustrate the distinct privacy concerns of mHealth apps by concentrating on …

The Price Of Competition: Analyzing Anticompetitive Tactics In Pharmaceutical Markets During The Hatch-Waxman Era, William Ulrich

Notre Dame Journal on Emerging Technologies

Pharmaceutical manufacturers can delay the generic entry for a blockbuster drug. In order to keep the generic system on track, it is critical to expose the various avenues of generic delay. Part I of this Note briefly describes the generic entry process as prescribed by the Hatch-Waxman Act. Part II details four well-known tactics used by brand-name manufacturers to block or delay the entry of generic competition, highlighting how the tactics are successful. Part III concludes by examining the nature of the various problems and arguing that the first step towards ending the different forms of anticompetitive behavior is through …

Entity Of The State: The Transparency Of Restricting Telecommunications Firms As Threats To America’S National Security, Benjamin W. Cramer

Notre Dame Journal on Emerging Technologies

This paper analyzes recent American regulations regarding international telecommunications firms that have been restricted from doing business in the United States, as apparent threats to national security. The paper will include policy-oriented research into the relevant legislation, plus more theoretical research on the framing of geopolitical disputes and the transparency of the resulting regulatory actions. There has been some suspicion from journalists and government watchdogs that such restrictions are politically motivated, with dramatic claims of national security threats leading to non-transparent trade regulations. This paper discusses the framing of geopolitical disputes and their impact on trade policy in the telecommunications …

U.S. Cryptocurrency Regulation: A Slowly Evolving State Of Affairs, Aaron Poynton

Notre Dame Journal on Emerging Technologies

After nearly a decade and a half since the creation of the first cryptocurrency, crypto regulation in the United States is fragmented, with different measures taken at the federal and state levels, and even within and among agencies. This sluggish speed is not necessarily a surprise as government regulation has always chased rapid advancements in technology and associated consumer and market behavior changes. However, this is a precarious position for the United States--and the world--as the U.S. is a leader in the global financial community, the high concentration of crypto-based wealth, and economies’ increasingly interconnected and interdependent nature. This working …

Note: Nft Art Heists: Analyzing Nfts Under U.S. Law And International Conventions On Art Theft, Kevin D. Brum

Notre Dame Journal on Emerging Technologies

The non-fungible token (“NFT”) is a type of digital asset that is usually associated with an image and has a unique identifier. An NFT cannot be copied or reproduced, and records of NFT transactions are stored on the blockchain. NFTs are a recent innovation and have swept the world by storm. NFT sales tripled from 2019 to 2020 and DappRadar—the premier platform for hosting decentralized NFT portfolio management applications—estimates that NFT sales hit twenty-five billion dollars in 2021. Many NFTs appear to be artistic works and, either individually or in a collection, can be given away for free, sold for …

Note: Artistic Relevance In Artificial Intelligence? “Roger” That!, Kelly Heilman

Notre Dame Journal on Emerging Technologies

In an era of technological revolution, artificial intelligence is shocking the legal field with its increasing popularity, power, and potential. The limits of property, personhood, and creativity are in question by both the public and the courts, leaving significant ambiguities in the law. Legal standards regarding the regulation of advanced technologies have raised unique and critical substantive questions for intellectual property rights, particularly that of trademarks, where the traditional purpose is source identification between consumers and goods.

Since the 1989 holding in Rogers v. Grimaldi, the use of trademarks for creative purposes, as a matter of First Amendment jurisprudence, …

Extended Privacy For Extended Reality: Xr Technology Has 99 Problems And Privacy Is Several Of Them, Suchismita Pahi, Calli Schroeder

Notre Dame Journal on Emerging Technologies

Americans are rapidly adopting innovative technologies which are pushing the frontiers of reality. But, when they look at how their privacy is protected within the new extended reality (XR), they will find that U.S. privacy laws fall short. The privacy risks inherent in XR are inadequately addressed by current U.S. data privacy laws or courtcreated frameworks that purport to protect the constitutional right to be free from unreasonable searches. Many scholars, including Ryan Calo, Danielle Citron, Sherry Colb, Margaret Hu, Orin Kerr, Kirsten Martin, Paul Ohm, Daniel Solove, Rebecca Wexler, Shoshana Zuboff, and others, have highlighted the gaps in U.S. …

Deepfake Fight: Ai-Powered Disinformation And Perfidy Under The Geneva Conventions, David Nicholas Allen

Notre Dame Journal on Emerging Technologies

Deception and disinformation are as much a part of the battlefield as bullets and bombs. However, just like with bullets and bombs, if the law does not properly regulate a capability’s use the capability could degrade faith in the law. In this respect, this paper examines deepfake technology, a modern artificial intelligence-based capability that can generate superficially-perfect yet wholly invented media content. The paper looks ahead to its potential future applications in armed conflict, processes the ways in which current law contemplates such deception, and distills recommendations for improving governance where needed.

In Defense Of (Virtuous) Autonomous Weapons, Don Howard

Notre Dame Journal on Emerging Technologies

I will argue, we can construct effective means for norming the use of autonomous weapons short of a total ban by building upon the foundation of existing requirements stipulated in Article 36 of Protocol I to the Geneva Conventions that all new weapons technologies be reviewed for compliance with the International Law of Armed Conflict (ILOAC) and International Humanitarian Law (IHL). I begin with a critical review of several of the most commonly encountered arguments in favor of a ban. That is followed by a discussion of the moral opportunities afforded by enhanced autonomy. I conclude with a concrete policy …

Ethical Ai In American Policing, Elizabeth E. Joh

Notre Dame Journal on Emerging Technologies

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating …

Note: Structured Psychometrics In Biglaw Talent Acquisition: Ai-Driven Quantitative Fit, Joseph J. Kim

Notre Dame Journal on Emerging Technologies

This Note combines a number of perspectives and disciplines to proffer a unique suggestion toward recognizing better talent and acquiring a new intraindustry competitive edge.

Note: Regulating Artificial Intelligence: A Call For A United States Artificial Intelligence Agency, Noah John Kahekili Rosenberg

Notre Dame Journal on Emerging Technologies

this Note draws upon two examples of emerging AI technologies that demonstrate the need for federal regulation: autonomous vehicles (i.e., self-driving cars) and algorithm-based hiring software. Part I illustrates the public safety concerns associated with AI technologies by outlining the inadequacy of existing laws and regulations on autonomous vehicles. Part II addresses the shortcomings of current regulations on algorithm-based hiring software and the issue of discrimination and inherent bias in AI. Part III recommends the creation of a new federal agency to guide AI regulation and enforcement.

The Centrality Of Data And Compute For Ai Innovation: A Blueprint For The National Research Cloud, Daniel E. Ho, Jennifer King, Russell C. Wald, Christopher Wan

Notre Dame Journal on Emerging Technologies

From the introduction: Artificial intelligence (AI) appears poised to transform the economy across sectors ranging from healthcare and finance to retail and education. What some have coined the “Fourth Industrial Revolution” is driven by three key trends: greater availability of data, increases in computing power, and improvements to algorithm design. First, increasingly large amounts of data have fueled the ability for computers to learn, such as by training an algorithmic language model on all of Wikipedia. Second, better computational capacity (often termed “compute”) and compute capability have enabled researchers to build models that were unimaginable merely ten years ago, spanning …

Breakfast With Q-A-Mom: Understanding & Combatting The Stealth Threat Of Women Engaged With Digital Domestic Terrorist Organizations, Leah A. Plunkett

Notre Dame Journal on Emerging Technologies

This essay proceeds in three parts. It provides (1) a high-level description of what QAnon is and who the Q-A-Moms are; (2) an analysis of how and why women join QAnon, importing the general “quest for personal significance” framework (characterized by “need[s], network, and narrative”) from researchers in psychology to legal scholarship for this specific query into Q-A-Moms; and (3) an initial thought challenge to building the solution space for combatting the threat Q-A-Moms pose. This approach takes the core of the Facebook Supreme Court model (creating new quasi-judicial and law enforcement structures within the private digital sector to address …

Big Proctor: Online Proctoring Problems And How Ferpa Can Promote Student Data Due Process, Elana Zeide

Notre Dame Journal on Emerging Technologies

When the pandemic forced schools to shift to remote education, school administrators worried that unsupervised exams would lead to widespread cheating. Many turned to online proctoring technologies that use facial recognition, algorithmic profiling, and invasive surveillance to detect and deter academic misconduct. It was an “epic fail.”. Intrusive and unproven remote proctoring systems turned out to be inaccurate, unfair—and often ineffectual. The software did not account for foreseeable student diversity, leading to misidentification and false flags that disadvantaged test-takers from marginalized communities. Educators implemented proctoring software without sufficient transparency, training, and oversight. As a result, students suffered privacy, academic, reputational, …

Note: Trust In The Digital Marketplace: Amazon, Third-Party Sellers, And Informational Fiduciaries, Jesse-Paul Crane

Notre Dame Journal on Emerging Technologies

The rise of e-commerce has created a number of online marketplaces where digital platforms connect buyers and sellers. Consumers use platforms like Amazon, Etsy, Instacart, Uber, Lyft, and Airbnb to purchase goods and services from third parties while the platform itself takes a fee for operating the marketplace. Online platforms are not the only businesses that use such a “two-sided” marketplace model. The Supreme Court recently addressed antitrust concerns in this type of marketplace in Ohio v. Am. Express Co. 1 Two-sided markets invoke a number of novel legal issues that impact both those who buy and sell over them, …

Note: Self-Regulation By The Private Industry And Its Effectiveness In Today's Online Environment, Stephanie Wong

Notre Dame Journal on Emerging Technologies

Over 30 years ago, self-regulation served as a hopeful potential regulatory framework that would allow private companies to provide effective privacy protections for consumers. The aspiration for a data protection self-regulation regime arose due to the emergence and development of online commercial activity. E-commerce benefited companies that conducted business online but presented new challenges for the protection of consumer data. The Federal Trade Commission encouraged companies that collect consumer data to develop their own forms of self-regulation to protect the personal data of online consumers. If properly implemented, self-regulation promised efficient reorganization of privacy protections to meet the challenges of …

The "Prime Factors" Of Quantum Cryptography Regulation, Lindsay Rand, Theodore Rand

Notre Dame Journal on Emerging Technologies

This Article asserts cryptography to be a critical starting point, as it could be a task for limited scope quantum computers with severe consequences. This Article surveys the risks of quantum computers to encryption and the applicable policy and legal levers to address concerns. As this Article shows, lawmakers must reassess regulations for the exportation of cryptographic products for the quantum regime. For example, current export regulations focus on bit length–which quantum cryptography directly undermines. Further, current controls prevent dispersion of physical products, while a rapidly growing amount of classical and, particularly quantum, computing now takes place “on the cloud.” …

Covid-19 Sewage Testing As A Police Surveillance Infrastructure, Elizabeth E. Joh

Notre Dame Journal on Emerging Technologies

This essay argues that sewage testing will outlive the pandemic and become a part of a general policing surveillance infrastructure. We risk adopting this surveillance method without taking care to assess the legal and policy questions raised by its use. Wastewater can provide early clues not just for COVID-19 outbreaks, but also for the presence (and assumed use) of opioids, methamphetamines, and other illegal drugs. Sewage testing at the University of California, San Diego, recently led to an alert that an infected person was “someone who used a restroom [at a specified residence hall] from 6 a.m. and 9:30 a.m. …

Note: Home-Sharing, Ride-Sharing, And Data-Sharing: Fourth Amendment Hurdles For Local Governance Of The Sharing Economy, Matthew J. Disler

Notre Dame Journal on Emerging Technologies

Cities’ attempts to regulate the sharing economy reveal a conflict between local governance interests and Fourth Amendment doctrine. Although sharing economy industries present local problems, from housing affordability and land-use regulations to traffic congestion and sidewalk safety, cities attempt to effectuate their policies through data reporting requirements that are vulnerable to Fourth Amendment challenge. Businesses have successfully argued that cities’ reporting requirements are unconstitutional searches because they have an unreasonably broad scope and lack an opportunity for pre-compliance review. This Article argues that this impasse results from recent developments that have lent additional confusion to the Fourth Amendment’s administrative search …

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Notre Dame Journal on Emerging Technologies

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

Note: The "Border" Of Constitutional Electronic Privacy Rights: Electronic Searches And Seizures At The United States' Territorial Limits, Ryan Garippo

Notre Dame Journal on Emerging Technologies

In the recent challenge brought before the First Circuit, the court was not required to directly answer what level of particularized suspicion is required for a forensic search. Although, its holding is consistent with the jurisprudence set forth by both the Fourth and Eleventh Circuits. Furthermore, it is important to note that there have been legal challenges brought on this issue in the Fifth, Seventh, and Tenth Circuits. However, in each of these cases, the court chose not to decide the constitutional question because it was not outcome determinative for the litigants in question. This disagreement between the federal circuit …

Charting The Skies: Where Does Facial Recognition Technology "Fit" In The Data Privacy Cosmos?, Steven D. Zansberg

Notre Dame Journal on Emerging Technologies

What I offer below is a theoretical framework for evaluating competing societal interests: the value our society assigns to the free-flow of information to the public, including highly sophisticated computergenerated analyses of gargantuan data sets—information that helps inform better individual and collective decision-making; and on the other hand, the value we place on privacy even in the context of technological advances. One’s most personal actions and thoughts—what we type into search engines, which videos we watch, for how long or how often, which books or articles we read, with whom we communicate and the contents of those communications—should not be …

Note: Facial Recognition Technology And The Constitution, Mark Simonitis

Notre Dame Journal on Emerging Technologies

Over the past several years, we have seen an increase in the adoption and use of facial recognition technology (FRT). Both private corporations and government organizations have increasingly used this technology over the past several years, and law enforcement agencies have been just as eager to utilize FRT in their operations. The potential uses for this technology in a law enforcement capacity are numerous. For example, FRT could be used to identify criminals whose faces were caught on surveillance footage, or it could be used to help identify citizens during border crossings. However, it is easy to imagine how an …

The Futility Of Regulating Social Media Content In A Global Media Environment, Rick G. Morris

Notre Dame Journal on Emerging Technologies

Social media reaches more people on the planet than any prior form of media and transmits more information world-wide than ever before. It is an empowering factor in establishing and growing communities, but at the same time, creates havoc and disseminates pernicious and perhaps dangerous speech. And so it has been with the media from the beginning of time. Throughout the media’s history, efforts at regulation or control of media speech has been fraught with difficulty, ineffectiveness, discrimination, and failure. The use of technology can deceive the consumer of the information, and the social media companies as well. Both government …

An Education Theory Of Fault For Autonomous Systems, William D. Smart, Cindy M. Grimm, Woodrow Hartzog

Notre Dame Journal on Emerging Technologies

Automated systems like self-driving cars and “smart” thermostats are a challenge for fault-based legal regimes like negligence because they have the potential to behave in unpredictable ways. How can people who build and deploy complex automated systems be said to be at fault when they could not have reasonably anticipated the behavior (and thus risk) of their tools? Part of the problem is that the legal system has yet to settle on the language for identifying culpable behavior in the design and deployment for automated systems. In this article we offer an education theory of fault for autonomous systems—a new …

Can Permissionless Blockchains Avoid Governance And The Law?, Eric Alston, Wilson Law, Ilia Murtazashvili, Martin Weiss

Notre Dame Journal on Emerging Technologies

Permissionless (or public) blockchain networks are a new form of decentralized private governance in the digital sphere. Though legal scholars recognize the significance of law in the use of blockchain, existing research using legal and institutional perspectives leaves blockchain governance as something of a black box. We provide a more granular analysis, finding that blockchain governance operates on four distinct levels. Governance at the protocol layer involves discrete institutional design choices intended to constrain network members’ incentives in an ongoing sense. Subsidiary governance arises from the need for communities to draft protocol updates and from the fact that governance protocol …