Law Commons^™

Uncommon Carriage, Blake Reid

Publications

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.

This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that …

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

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No abstract provided.

Chatgpt, Ai Large Language Models, And Law, Harry Surden

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This Essay explores Artificial Intelligence (AI) Large Language Models (LLMs) like ChatGPT/GPT-4, detailing the advances and challenges in applying AI to law. It first explains how these AI technologies work at an understandable level. It then examines the significant evolution of LLMs since 2022 and their improved capabilities in understanding and generating complex documents, such as legal texts. Finally, this Essay discusses the limitations of these technologies, offering a balanced view of their potential role in legal work.

Toward Stronger Data Protection Laws, Margot E. Kaminski

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No abstract provided.

Reconsidering The Public Square, Helen L. Norton

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No abstract provided.

Regulating The Risks Of Ai, Margot E. Kaminski

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Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

Naïve Realism, Cognitive Bias, And The Benefits And Risks Of Ai, Harry Surden

Publications

In this short piece I comment on Orly Lobel's book on artificial intelligence (AI) and society "The Equality Machine." Here, I reflect on the complex topic of aI and its impact on society, and the importance of acknowledging both its positive and negative aspects. More broadly, I discuss the various cognitive biases, such as naïve realism, epistemic bubbles, negativity bias, extremity bias, and the availability heuristic, that influence individuals' perceptions of AI, often leading to polarized viewpoints. Technology can both exacerbate and ameliorate these biases, and I commend Lobel's balanced approach to AI analysis as an example to emulate.

Although …

Humans In The Loop, Rebecca Crootof, Margot E. Kaminski, W. Nicholson Price Ii

Publications

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the …

Technological 'Disruption' Of The Law's Imagined Scene: Some Lessons From Lex Informatica, Margot Kaminski

Publications

Joel Reidenberg in his 1998 Article Lex Informatica observed that technology can be a distinct regulatory force in its own right and claimed that law would arise in response to human needs. Today, law and technology scholarship continues to ask: does technology ever disrupt the law? This Article articulates one particular kind of “legal disruption”: how technology (or really, the social use of technology) can alter the imagined setting around which policy conversations take place—what Jack Balkin and Reva Siegal call the “imagined regulatory scene.” Sociotechnical change can alter the imagined regulatory scene’s architecture, upsetting a policy balance and undermining …

The Law Of Ai, Margot Kaminski

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No abstract provided.

Book Review, Aamir S. Abdullah

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No abstract provided.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

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Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Surveying The Safety Culture Of Academic Laboratories, Emily Faulconer, Zachary Dixon, John C. Griffith, Hayden Frank

Publications

The university traditionally has been the foundation for young adults’ professional development, yet the proclivity toward safety culture has garnered less focus in higher education than in the workforce. A survey of faculty at a medium-sized, research-active, private institution revealed specific areas of policy noncompliance as well as specific safety attitudes that can be targeted for interventions. Albeit a snapshot view, the survey implies that safety needs better representation in the classroom, teaching laboratories, and research facilities at universities. Safety is not abandoned by any means, and there is a strong presence of safety-oriented individuals, but the data show barriers …

Blockchains And The Ethical Considerations Of Centralization, Michele Benedetto Neitz

Publications

Blockchain technology’s promise is extraordinary—a truly decentralized and immutable ledger that could impact everything from cryptocurrencies and health care to supply chain management and civic voting. But a close examination of both permissioned and permissionless blockchains reveals that blockchain technology is actually moving in the direction of centralization, with small groups of people influencing decisions that affect entire blockchains. This emerging reality has profound ethical ramifications for the governance of blockchains.

A Recent Renaissance In Privacy Law, Margot Kaminski

Publications

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.

Beyond The Marrakesh Vip Treaty: Typology Of Copyright Access-Enabling Provisions For Persons With Disabilities, Caroline B. Ncube, Blake E. Reid, Desmond O. Oriakhogba

Publications

This paper builds upon the evidence drawn from a scoping study on access to copyright works by persons with disabilities. It identifies and discusses specific access‐enabling technologies for persons with aural, cognitive, physical, and visual disabilities and how they are affected by the exercise of exclusive rights. It shows how, and the extent to which states' ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) has enabled the making of accessible format of copyright works for persons with disabilities. To this end, the paper examines …

Are Data Privacy Laws Trade Barriers?, Margot Kaminski

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No abstract provided.

Regulatory De-Arbitrage In Twenty-First Century Cures Act's Health Information Regulation, Craig Konnoth

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Health data regulation can be thought of at two levels. First, the micro- level of regulation has to do with Electronic Health Records (EHRs). Second, the macro-level concerns the networks on which EHRs are transmitted. The micro- and macro-levels of regulation interact. For example, EHRs need to be configured so that they can be transmitted on mandated networks. As a result, the lines do sometimes blur.

That said, the 21st Century Cures Act (Cures) clearly takes a dual approach to regulation. Cures was passed in December 2016 on a bipartisan basis. Its mandate was to address health data regulation at …

Artificial Intelligence And Law: An Overview, Harry Surden

Publications

Much has been written recently about artificial intelligence (AI) and law. But what is AI, and what is its relation to the practice and administration of law? This article addresses those questions by providing a high-level overview of AI and its use within law. The discussion aims to be nuanced but also understandable to those without a technical background. To that end, I first discuss AI generally. I then turn to AI and how it is being used by lawyers in the practice of law, people and companies who are governed by the law, and government officials who administer the …

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

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No abstract provided.

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

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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 …

Inside The Black Box Of Search Algorithms, Susan Nevelow Mart, Joe Breda, Ed Walters, Tito Sierra, Khalid Al-Kofahi

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A behind-the-scenes look at the algorithms that rank results in Bloomberg Law, Fastcase, Lexis Advance, and Westlaw.

The Right To Explanation, Explained, Margot E. Kaminski

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Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released …

Bloomberg’S Points Of Law: Can They Compete With Headnotes?, Jill Sturgeon

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No abstract provided.

Understanding The Human Element In Search Algorithms And Discovering How It Affects Search Results, Susan Nevelow Mart

Publications

When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

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No abstract provided.

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

That Was Close! Reward Reporting Of Cybersecurity “Near Misses”, Jonathan Bair, Steven M. Bellovin, Andrew Manley, Blake Reid, Adam Shostak

Publications

Building, deploying, and maintaining systems with sufficient cybersecurity is challenging. Faster improvement would be valuable to society as a whole. Are we doing as much as we can to improve? We examine robust and long-standing systems for learning from near misses in aviation, and propose the creation of a Cyber Safety Reporting System (CSRS).

To support this argument, we examine the liability concerns which inhibit learning, including both civil and regulatory liability. We look to the way in which cybersecurity engineering and science is done today, and propose that a small amount of ‘policy entrepreneurship’ could have substantial positive impact. …

Bridges Ii: The Law--Stem Alliance & Next Generation Innovation, Harry Surden

Publications

Technological change recently has altered business models in the legal field, and these changes will continue to affect the practice of law itself. How can we, as educators, prepare law students to meet the challenges of new technology throughout their careers?