Intellectual Property Law Commons^™

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Insuring Judgements And The Disclosure Gap, Jonathan Stroud, Sam Korte

American University Law Review

Judgment preservation insurance (“JPI”) is a newer, under-the-radar financial innovation upending the litigation landscape today. By insuring plaintiffs' trial victories on appeal, these policies neutralize the risk of reversal, but have been criticized for preventing settlement and extending disputes. Despite JPI's growing use, a regulatory blind spot allows these policies to remain concealed from the courts throughout the appellate process. We spotlight JPI, contrast it with widely used litigation insurance products, and propose appellate disclosure requirements in line with existing insurance disclosure rules. These simple changes would close the disclosure gap on appeal.

Trademarking Hate Speech: The Dangers Of Inconsistency In The Federal Trademark Registration Process, Michaela A. Giuggio

Lewis & Clark Law Review

In 2017, the United States Supreme Court decided in Matal v. Tam that the Lanham Act’s prohibitions on disparaging trademarks violated the First Amendment of the Constitution. Two years later, it decided in Iancu v. Brunetti that prohibitions on “immoral or scandalous” marks were similarly unconstitutional. In the wake of these decisions, and at a time when hate speech is surging in the United States, this Comment seeks to address the danger of the USPTO’s approach to federal trademark registration. Part I uses the example of the WHITE LIVES MATTER mark to introduce the problems that arise in this new, …

How Licenses Learn, Madiha Zahrah Choski, James Grimmelmann

Lewis & Clark Law Review

Open-source licenses are infrastructure that collaborative communities inhabit. These licenses don’t just define the legal terms under which members (and outsiders) can use and build on the contributions of others. They also reflect a community’s consensus on the reciprocal obligations that define it as a community. A license is a statement of values, in legally executable form, adapted for daily use. As such, a license must be designed, much as the software and hardware that open-source developers create. Sometimes an existing license is fit to purpose and can be adopted without extensive discussion. However, often the technical and social needs …

Knowledge Commons Past, Present, And Future, Michael J. Madison

Lewis & Clark Law Review

The project now known as Governing Knowledge Commons, or GKC, was launched more than 15 years ago on the intuition that skepticism of intellectual property law and information exclusivity was grounded in anecdote and ideology rather than in empiricism. Structured, systematic, empirical research on mechanisms of knowledge sharing was needed. GKC aimed to help scholars produce it. Over multiple books, case studies, and other work, the scope of GKC has expanded considerably, from innovation to governance; from invention and creativity to data, privacy, and markets; and from social dilemmas focused on things to governance strategies directed to communities and collectives. …

The Emerging Name, Image, And Likeness Industry And The Perils Of Appropriating "Entrepreneurial" Collegiate Athletes' And "Vengeful" Minors' Property Interests - Historical And Empirical Guidance From Courts' Rights Of Publicity, Misappropriation, And Breach Of Contract Decisions, Willy E. Rice

Faculty Articles

From the late-1880s to the early-2020s, universities and the collegiate sports industry exploited millions of "college kids" as well as their parent investors by preventing "entrepreneurial athletes" from monetizing their names, images, and likenesses (NILs). Yet, during the same era, the collegiate-athletics industry like the movie and music industries appropriated young people's NILs and pocketed billions of dollars. In 2021, the Supreme Court decided NCAA v. Alston and embraced the Ninth Circuit's ruling in O'Bannon v. NCAA. Ostensibly, these decisions and thirty plus state NIL statutes terminated the "official" exploitation of students. Currently, entrepreneurial students and some parents may commercialize …

Artificial Intelligence (Ai) In Patent Practice: No Patent Attorneys Were Harmed In The Making Of This Ai Revolution (Book), Roberto Rosas, Juan Vasquez, Dianisa Erica Sosa, Francisco Javier Hernandez-Rodriguez, Daniel Kovach

Faculty Articles

This book provides a comprehensive examination of the rapidly evolving role of artificial intelligence (AI) in the patent law profession. Rather than a traditional legal text, this work offers an in-depth exploration of the profound impacts AI will have on patent attorneys' workflows and practices.

The central inquiry posies whether AI will ultimately replace patent attorneys or serve as a powerful complementary technology. This study contends that AI is poised to become an indispensable tool that augments and enhances the patent attorney's capabilities rather than renders them obsolete. Through detailed analysis of a patent attorney's typical workweek utilizing AI assistance, …

Ethics Of Innovation: A Framework For Responsible Innovation Governance, Nicole Morris

SMU Science and Technology Law Review

Over the past several years, startups that once seemed destined for greatness have failed or collapsed because of fraud committed by the founders. Most notable are the Theranos and FTX business collapses, which culminated in the convictions of two infamous entrepreneurs, Elizabeth Holmes and Sam Bankman-Fired, respectively. Startup innovators are not alone when it comes to morally dubious behavior. According to Retraction Watch, nearly 5000 papers published in science & engineering journals were retracted in 2022. Research misconduct allegations eventually led to the resignation of Stanford University President Marc Tessier-Lavigne in July 2023. The research scandal at Stanford received lots …

Solar Eclipses And The Law, Chad Marzen, Michael Conklin

SMU Science and Technology Law Review

This Article provides a comprehensive overview of the legal issues that appear with a solar eclipse. These include the sale of defective or fake eclipse glasses, vehicle accidents, liability claims for personal injuries against school districts, as well as questions involving the freedom of religion. Finally, this Article concludes by considering the juxtaposition between a perennial event such as a solar eclipse and the evolving nature of law.

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 …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Liability Rules For Automated Vehicles: Definitions And Details, William H. Widen, Philip Koopman

SMU Science and Technology Law Review

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

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 …

Algorithmic Adjudication And Constitutional Ai—The Promise Of A Better Ai Decision Making Future?, April G. Dawson

SMU Science and Technology Law Review

Algorithmic governance is when algorithms, often in the form of AI, make decisions, predict outcomes, and manage resources in various aspects of governance. This approach can be applied in areas like public administration, legal systems, policy-making, and urban planning. Algorithmic adjudication involves using AI to assist in or decide legal disputes. This often includes the analysis of legal documents, case precedents, and relevant laws to provide recommendations or even final decisions. The AI models typically used in these emerging decision-making systems use traditionally trained AI systems on large data sets so the system can render a decision or prediction based …

The Game-Changer: Legal Issues Surrounding Wearable Technology In Sports, Jack Vande Berg

SMU Science and Technology Law Review

Athletes and teams are always seeking to gain a competitive edge, and the emergence of wearable technology has provided them with biometric data that provides new insights into performance. The market for wearable technology has been growing at a rapid pace in recent years and is projected to continue on an upward trajectory through the end of the decade. Governing bodies of sport at a professional and amateur level have adapted regulations for the use of this new technology and the data it produces. This article provides an overview of these current regulations, and then discusses three pressing legal issues. …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Neither Here Nor There: Redefining “Presence” For A Virtual Criminal Justice System, Brandon M. Draper

SMU Science and Technology Law Review

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials …

Computers, Credit, And Human Dignity, Jonathan Weinberg

SMU Science and Technology Law Review

Credit scores determine a person’s life chances. The credit scores we’re all used to, calculated by Equifax, Experian, or TransUnion, take as inputs a person’s payment history, loans, current debt, and similar financial information. But that world is changing. Modern alternative data models for credit scoring can go so far as to include an individual’s educational record, criminal history, shopping behavior, or telephone patterns. Activists, regulators, and scholars have expressed serious concerns about these new credit systems. Do they classify applicants on unfair or arbitrary grounds? Do they perpetuate, or even amplify, bias and pre-existing inequality?

Participants in this conversation …

Generative Ai In The Attorney-Client Relationship: An Exercise In Critical Revision And Client Management, Michael L. Smith

SMU Science and Technology Law Review

Discussions of generative AI in legal practice and education often assert that this technology will lead to a sea change in legal writing, research, and revision. While some of the more breathless proclamations deserve skepticism, there’s little doubt that this technology may generate new forms of headaches for those in the legal field—particularly once it’s in the hands of clients or opposing counsel who wish to use this technology to save the time, money, and effort required for complex legal tasks.

This essay proposes an exercise template for law students that illustrates how generative AI technology may be misused or …

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Trademarks On The Blockchain: Nft Domains And Collisions, Jelena Laketić

Michigan Technology Law Review

Blockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.

This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs …

A Series Of Historical Accidents, Christopher S. Storm

Michigan Technology Law Review

The Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit …

Innovation Originators, Tabrez Y. Ebrahim, Rafeel Wasif

Michigan Technology Law Review

Asian Americans are one of the most striking and undertheorized ethnic groups in the field of innovation. While a prolific ethnic group when it comes to being named as inventors on U.S. patents, very little has been written on this observation, perhaps because of previously limited datasets and unwieldy data analysis on ethnic backgrounds about patenting at the United States Patent & Trademark Office (USPTO). Research on inventor diversity and ethnicity in innovation has begun to explore some ethnic groups, but a more holistic account should focus on one particular overlooked group. Recently, entrepreneurship studies concerning ethnicity have shown that …