Law Commons^™

A Deep Look At Copyright’S Volitional Conduct Doctrine And Generative Artificial Intelligence, Aleksander J. Goranin

Emory Law Journal

This Article examines copyright’s volitional conduct doctrine, as applied to generative artificial intelligence (AI) systems. It traces the doctrine’s origins and evolution through key court decisions, analyzing its underlying rationale as a response to the harshness of the RAM copy rule and its elaboration as a proximate causation doctrine. The Article then evaluates how classic volitional conduct analogies to copy shops and photocopies may fit generative AI systems. Ultimately, the Article proposes a jury instruction to guide application of the volitional conduct doctrine in generative AI cases. The Article argues that the doctrine serves an important role in copyright law, …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Emory Law Journal

Generative AI, machine learning, and other computational uses of copyrighted works pose profound conceptual questions for copyright law. This Article surveys multiple countries with different legal traditions and local conditions to explore how they have responded to these questions in relation to the use of copyrighted works for AI training without express permission from the relevant rightsholders. Our survey suggests an emerging international equilibrium in which jurisdictions from around the world have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text and data mining, computational data analysis, and AI training can be socially …

Our Progressively Brutal Constitution: A Legal Expressivist Account Of The Excessive Force Doctrine, Danielle C. Jefferis

Emory Law Journal

The Constitution forbids some forms of physical violence. However, the scope of its protection depends on the legal status of the person subjected to the violence. The Fourth Amendment protects a person outside the criminal legal system from a state actor’s “objectively unreasonable” force. A pre-trial detainee has a similar, though weaker, right under the Due Process Clause. But after conviction, a person’s right of protection from state violence has nearly vanished: the Eighth Amendment prohibits only force applied “maliciously and sadistically for the very purpose of causing harm.” Rather than meaningfully limiting state violence, this doctrine constructs a constitutional …

Playing Politics: Social Media, Censorship, And Speech Gamification, Khaled A. Beydoun

Emory Law Journal

Forty percent of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez-faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.

As such, the primary threat to free speech today is not the state …

A Haven For Polluters: Examining Cercla Successor Liability Under State Law, Hannah R. Behar

Emory Law Journal

This Comment explores how businesses exploit variability in state corporate law to evade liability for hazardous waste pollution. In particular, it examines the tension between the successor liability doctrine and environmental accountability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). While CERCLA purports to hold polluters responsible for site cleanup under a broad liability scheme, some states have effectively—through limiting statutes and rigid judicial interpretation—allowed businesses to retain control of environmental assets while casting off associated liabilities. This trend is particularly concerning because most jurisdictions apply state law, as opposed to a uniform federal rule, when considering …

Authoring While Dead, Mark A. Lemley, Oliver W. Holmes Jr.

Georgia Law Review

Bob Marley died in 1981. But he wrote a song in 2017 with The Killers. At least, that’s what the song credits say. Why? Because The Killers’ song included the two words “redemption song,” the title of a classic Bob Marley hit. Rather than fight, The Killers agreed to add Marley as a co-author.

There is an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or “interpolation”) credit to the claimant, no matter how weak the claim (as in Marley’s case), and even if they are dead (as in Marley’s case again). Bob …

Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Grosso, Catherine M., Laurence, Michael, Fagan, Jeffrey

Santa Clara Law Review

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

Collaborative Efforts To Combat Racism: Academics And Criminal Defense Lawyers In The Pursuit Of Racial Justice In California, Alvarez, Karina, Cameron-Wedding, Dr. Rita

Santa Clara Law Review

Lawyers and academics frequently cooperate to shape public policy and outcomes in specific cases, including in the area of racial justice. However, too frequently, lawyers and academics operate in silos—working towards the same goal of racial justice, but in different arenas. Lawyers are bound to their clients, foremost, and to advocacy before the court—often so much so that they might lose sight of broader challenges, achievements, and theories in racial justice. By contrast, academics spend their lives in the abstract, leaving them at risk of losing sight of the on-the-ground impact of their expert theoretical advances. This article aims to …

Conservative Family Values As Constitutional Law: Private Regulation And The Erosion Of Fundamental Rights, Spera, Clara, Fleming, Katherine

Santa Clara Law Review

This Article examines a paradox in contemporary constitutional law: While constitutional rights traditionally protect minorities against majority preferences, the Supreme Court has increasingly enabled certain private actors to override others’ constitutionally protected family formation choices through what this Article calls “private regulation.” The Court’s decisions allow individual private actors to impose traditional religious and moral views on others who do not share those beliefs, while simultaneously embedding those very views in constitutional jurisprudence. This dual approach creates a troubling inversion. Instead of constitutional rights serving their traditional function of protecting minorities from majority overreach, they are being used to empower …

Esg In Space: Creating An Effective Space Governance System By Using Terrestrial Esg Principles To Properly Regulate Private Space Actors, Hu, Phillip S.

Santa Clara Law Review

As the privatization of space accelerates, concerns arise about the potential for unregulated exploitation of celestial resources by private companies. From setting up extraterrestrial colonies to exploiting asteroids, private space companies have long aimed to tap into the riches of the cosmos. Our current legal framework is not prepared for the huge influx of new private space actors, all while new regulation has trailed the fast-paced space industry and its advances. For an effective space governance system to be created, a new regulatory framework that helps regulate private space actors must be created.

This Note argues for the application of …

“That Class Changed My Life”: Using Transformative Learning Theory To Teach Leadership, Mitchell, Jane

Santa Clara Law Review

Since the country’s founding, the legal profession has served as a springboard for some of society’s greatest leaders. But by and large, lawyers were not trained to lead—until recently. Over the last fifteen years, law schools have become increasingly intentional about leadership development. Leadership programs in law schools have proliferated, as has a growing body of scholarship on lawyer leadership.

Surprisingly, the literature on lawyer-leader development has neglected adult learning theories. This Article addresses that gap and grounds the teaching of leadership in a well-established theoretical tradition. It presents the results of a design-based research study that applies Mezirow’s transformative …

Addressing Witness Coaching By Cross-Examination, Gregory C. Sisk

St. Mary's Journal on Legal Malpractice & Ethics

In preparing a witness, may a lawyer script the testimony by taking the witness through repeated rehearsals to fabricate a narrative in the form directed by the lawyer and to use words that the lawyer suggests are more favorable for the represented party? Suppose the lawyer believes a suggestion to the witness regarding the specific substance or word choice of testimony does not introduce a falsehood but rather produces a more favorable spin on the witness narrative. May the lawyer justify that shaping of testimonial content as legitimate zealous representation of a client?

Given that any such suggestion by the …

Our Ai, Ourselves: Illuminating The Human Fears Animating Early Regulatory Responses To The Use Of Generative Ai In The Practice Of Law, Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

Generative artificial intelligence is changing the way lawyers work, and with those changes have come questions and concerns about how it should be regulated. Those questions and concerns, particularly on the individual level, are driven by fears about the implications of the use of generative AI. This Article identifies and explores the fears that drive these regulatory responses: fear of exposing judicial fallibility, anxiety over AI replacing human lawyers, and concerns about missing out on AI’s potential benefits. Ultimately, effective regulation of the use of generative AI in legal practice needs to be attentive to the fears and hopes surrounding …

Trading Places: An Education For Legal Employers: A View From The Perspective Of A New Generation Of Legal Talent, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Most lawyers remember the stress associated with walking into their first job interview. The goal being to get the interviewer to “pick me.” Today, legal employers need to be prepared to be more of the interviewee than the interviewer in the hiring process. Over the past few decades, much focus has been on identifying the skills essential to success in the legal profession—mainly those skills and traits legal employers view as important when hiring new associates. These findings led to changes in legal education in order to prepare law students for entering the employment market and successfully securing a position. …

Artificial Intelligence In Texas: Navigating The Risks, Benefits, And Uncharged Boundaries Of An Emerging Technology, Jordanna Tobias

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

I Am A Person Too: The State's Failure To Secure Transgender Rights And Personhood, Trevor L.M. Reynolds

Law Student Publications

The winds of change appeared to blow on June 15, 2020, when the Supreme Court decided Bostock v. Clayton County. The Bostock decision - in which the Court held that discrimination based upon an employee's gender identity violated Title VII of the Civil Rights Act - has been heralded as a revolutionary triumph for the LGBTQ+ community. And yet, while the Bostock decision dictated that employers cannot terminate people based on their gender identity, it failed in the most important regard: establishing gender identity as a protected constitutional class. The Court, however, is not unique in its failure to …

Fear And Free Speech, Helen Norton

Publications

No abstract provided.

Religious Police Forces With Public Powers, Jonathon J. Booth

Publications

No abstract provided.

Ethical Issues In Pandemic Prevention, Preparedness, And Response, Govind Persad

Publications

Pandemic policies raise complex ethical challenges, as well as scientific and technical ones. This chapter examines four critical areas where ethical analysis is essential for effective pandemic prevention, preparedness, and response: spending decisions, clinical research, restrictions on rights and freedoms, and fair allocation of scarce medical resources.

Spending on pandemic prevention, preparedness, and response often involves trade-offs with other societal priorities, such as education, infrastructure, and environment. Navigating these trade-offs requires careful consideration of opportunity costs and distributional impacts.

Rights and freedoms can likewise present difficult trade-offs when pandemic policies restrict individual liberties, requiring clear goals and proportionate responses that …

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

Publications

No abstract provided.

Tainted Source Code, Bryan H. Choi

Publications

Open-source software has long eluded tort liability. Fierce ideological commitments and sticky license terms support a long tradition of forbearance against penalizing harmful or negligent work in open-source communities. The free, noncommercial, distributed, and anonymous characteristics of open-source contributions present additional obstacles to legal enforcement.

The exponential rise in software supply chain attacks has given new urgency to the problem of bad open-source code. Yet, current approaches are unlikely to meaningfully improve open-source security and safety. On the one hand, technological tools and self-governance mechanisms remain woefully underdeveloped and underutilized. On the other hand, liability proposals that place all the …

Anchoring Digital Sovereignty, Vivek Krishnamurthy

Publications

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet's infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world's democracies to keep the Internet free, open, and global; yet it …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

Transforming Tax Expenditures, Sloan G. Speck

Publications

For decades, reformers have advocated the repeal of tax expenditures--disguised government spending through special preferences in the Internal Revenue Code. And yet, tax expenditures persist, impairing federal tax receipts by more than $1.8 trillion in 2024. This Article introduces a novel mechanism for tax expenditure reform. To the extent that direct statutory repeal proves impossible or impractical, lawmakers can achieve an equivalent result through a strategy of legislative anti-repeal. By radically expanding a tax expenditure's legal scope, then adjusting progressive income tax rates to account for revenue loss and distributional considerations, lawmakers can effectively eliminate tax expenditures from the tax …

Nist's Software Un-Standards, Bryan H. Choi

Publications

The National Institute of Standards and Technology (NIST) has become a beacon of hope for those who trust in federal standards for software and AI safety. Moreover, lawmakers and commentators have indicated that compliance with NIST standards ought to shield entities from liability. With more than a century of expertise in scientific research and standard setting, NIST would seem to be uniquely qualified to develop such standards.

But as I argue in this Article, this faith is misplaced. NIST’s latest forays in risk management frameworks disavow concrete metrics or outcomes, and solicit voluntary participation instead of providing stable mandates. That …

Impacted Stakeholder Participation In Ai And Data Governance, Margot Kaminski, Gianclaudio Malgieri

Publications

Privacy law has long centered on the individual. But we observe a meaningful shift toward group harm and rights. There is growing recognition that data-driven practices, including the development and use of artificial intelligence (AI) systems, affect not just atomized individuals but also their neighborhoods and communities, including and especially situationally vulnerable and historically marginalized groups.

This Article explores a recent shift in both data privacy law and the newly developing law of AI: a turn towards stakeholder participation in the governance of AI and data systems, specifically by impacted groups often though not always representing historically marginalized communities. In …

From Race-Conscious To Race-Neutral: The Next Generation Of Litigation Over Selective Admissions, Rachel F. Moran

Faculty Scholarship

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form …

Masthead

Journal of Race, Gender, and Ethnicity

No abstract provided.

Protect Transgender Kids: What Is “Protection” In Light Of Bans On Gender-Affirming Care?, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

This Note examines the growing legal and constitutional conflict surrounding state laws that ban or restrict gender-affirming care for transgender minors. At the heart of the issue lies the clash between state authority and the constitutionally protected rights of parents under the Due Process Clause of the Fourteenth Amendment. Drawing on medical consensus that affirms the necessity and efficacy of gender-affirming care, the Note argues that these laws not only endanger the well-being of transgender youth but also infringe on parents' fundamental rights to direct their children’s medical treatment. The analysis highlights how some states mischaracterize gender-affirming care as a …

Book Banning: The Post-Pico Epidemic Upon Nationwide Academic Curricula, Brian Gomberg

Journal of Race, Gender, and Ethnicity

This Note explores the growing wave of book bans across the United States, highlighting the increasing role of state legislators in advancing policies that restrict access to literature in public schools. While historically driven by private individuals or local challenges, contemporary bans are now often state-sanctioned, with states like Texas, Florida, Missouri, Utah, and South Carolina leading the movement. These actions not only suppress specific titles but also target entire genres, disproportionately affecting books dealing with race, gender, and LGBTQ+ identities. Drawing on sources such as the PEN America Index of School Book Bans, the Note analyzes the historical context …