Science and Technology Law Commons^™

(Un)Corporate Crypto-Governance, Carla L. Reyes

Fordham Law Review

Public blockchain protocols face a serious governance crisis. Thus far, blockchain protocols have followed the path of early internet governance. If the architects of blockchain protocols are not careful, they may suffer a similar fate—increased governmental control, greater centralization, and decreased privacy. As blockchain architects begin to consider better governance structures, there is a legal movement underway to impose a fiduciary framework on open-source software developers. If the movement succeeds, the consequences for open-source software development could be dire. If arbitrarily imposed on blockchain communities without consideration of variances among communities or the reality of how such communities operate, the …

How To Explain To Your Twins Why Only One Can Be American: The Right To Citizenship Of Children Born To Same-Sex Couples Through Assisted Reproductive Technology, Lena K. Bruce

Fordham Law Review

Sections 301 and 309 of the Immigration and Nationality Act (INA) govern birthright citizenship by descent. Per the U.S. Department of State’s (DOS) interpretation of these sections, to transmit citizenship to a child, the U.S. citizen-parent must have a biological connection with the child. For couples who use assisted reproductive technology (ART) to have children, however, this means that one parent will always be barred from transmitting citizenship to their own child. This is because in ART families, at least one parent will always lack the biological connection that the DOS requires to transmit citizenship pursuant to the INA. This …

Artificial Intelligence In Pharmaceuticals, Biologics, And Medical Devices: Present And Future Regulatory Models, David W. Opderbeck

Fordham Law Review

Artificial intelligence (AI) and AI-assisted technologies are set to transform the pharmaceutical, biologic, and medical device industries. AI is accelerating a convergence in the pharmaceutical and medical device industries and, in the health-care industry more broadly, is similar to the convergence of the media, entertainment, and communications industries.

Power, Process, And Automated Decision-Making, Ari Ezra Waldman

Fordham Law Review

Automated decision-making systems based on “big data”–powered algorithms and machine learning are just as prone to mistakes, biases, and arbitrariness as their human counterparts. The result is a technologically driven decision-making process that seems to defy interrogation, analysis, and accountability and, therefore, undermines due process.

Cda 230 For A Smart Internet, Madeline Byrd, Katherine J. Strandburg

Fordham Law Review

This Article analyzes CDA 230 liability in light of the evolution of smart services employing data-driven personalized models of user behavior. As an illustrative case study, we discuss discrimination claims against Facebook’s ad-targeting platform, relying on recent empirical studies5 and litigation documents for factual background.

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Fordham Law Review

The creation and commercialization of these systems raise the question of how liability risks will play out in real life. However, as technical advancements have outpaced legal actions, it is unclear how the law will treat AI systems. This Article briefly addresses the legal ramifications and liability risks associated with reliance on—or delegation to—AI systems, and it sketches a framework suggesting how we can address the question of whether AI merits a new approach to deal with the liability challenges it raises when humans remain “in” or “on” the loop.

Urbanism Under Google: Lessons From Sidewalk Toronto, Ellen P. Goodman, Julia Powles

Fordham Law Review

Cities around the world are rapidly adopting digital technologies, data analytics, and the trappings of “smart” infrastructure. These innovations are touted as solutions to help rationalize services and address rising urban challenges, whether in housing, transit, energy, law enforcement, health care, waste management, or population flow. Promises of urban innovation unite cities’ need for help with technology firms’ need for markets and are rarely subject to evidentiary burdens about projected benefits (let alone costs). For the city, being smart is about functioning better and attracting tech plaudits. For the technology company, the smart city is a way to capture the …

Artificial Intelligence, Machine Learning, And Bias In Finance: Toward Responsible Innovation, Kristin Johnson, Frank Pasquale, Jennifer Chapman

Fordham Law Review

According to some futurists, financial markets’ automation will substitute increasingly sophisticated, objective, analytical, model-based assessments of, for example, a borrower’s creditworthiness for direct human evaluations irrevocably tainted by bias and subject to the cognitive limits of the human brain. However, even if they do occur, such advances may violate other legal principles.

Artificial Intelligence, Finance, And The Law, Tom C.W. Lin

Fordham Law Review

Artificial intelligence is an existential component of modern finance. The progress and promise realized and presented by artificial intelligence in finance has been thus far remarkable. It has made finance cheaper, faster, larger, more accessible, more profitable, and more efficient in many ways. Yet for all the significant progress and promise made possible by financial artificial intelligence, it also presents serious risks and limitations. This Article offers a study of those risks and limitations—the ways artificial intelligence and misunderstandings of it can harm and hinder law, finance, and society. It provides a broad examination of inherent and structural risks and …

Robot, Inc.: Personhood For Autonomous Systems?, Gerhard Wagner

Fordham Law Review

Since the invention of the steam engine, technological progress has served as a driver of innovation for liability systems. Pertinent examples include the arrival of the railway and the introduction of motor-powered vehicles. Today, the digital revolution challenges established legal axioms more fundamentally than technological innovations from earlier times. The development of robots and other digital agents operating with the help of artificial intelligence will transform many, if not all, product markets. It will also blur the distinction between goods and services and call into question the existing allocation of responsibility between manufacturers and suppliers on one side and owners, …

Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson

Fordham Law Review

Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for familial relatives …

Don't Bring A Cad File To A Gun Fight: A Technological Solution To The Legal And Practical Challenges Of Enforcing Itar On The Internet, Catherine Tremble

Fordham Law Review Online

This Essay begins by outlining Cody Wilson’s motivation to found his organization, Defense Distributed, and the organization’s progress toward its goals. Then, Part II provides a brief overview of the protracted legal battle between Wilson and the State Department over the right to publish Computer-Aided Design (CAD) files on the internet that enable the 3D printing of guns and lower receivers. Part III.A takes a brief look at whether these CAD files are rightly considered speech at all and, if so, what level of protection they might receive. Part III.B then addresses the problem of even asking whether the files …

Negligent Disruption Of Genetic Planning: Carving Out A New Tort Theory To Address Novel Questions Of Liability In An Era Of Reproductive Innovation, Tracey Tomlinson

Fordham Law Review Online

This Essay will address current concerns pertaining to ART-related negligence, and ultimately recommends the adoption of a new tort— negligent disruption of genetic planning (NDGP). This tort would enable plaintiffs to recover damages when an ART clinic’s negligent actions thwart reproductive planning, while simultaneously balancing the serious moral and ethical questions that arise in these situations. This argument proceeds in three Parts. Part I discusses the technological evolution of ART and gives examples of ART-related negligence cases that have occurred in the United States. Part II lays out the current U.S. tort remedies relied on by plaintiffs in these situations, …

The Private-Sector Ecosystem Of User Data In The Digital Age, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Fourth Amendment And Technological Exceptionalism After Carpenter: A Case Study On Hash-Value Matching, Denae Kassotis

Fordham Intellectual Property, Media and Entertainment Law Journal

The Fourth Amendment has long served as a barrier between the police and the people; ensuring the government acts reasonably in combating crime. Fourth Amendment jurisprudence is more dynamic than other constitutional guarantees, and has undergone periodic shifts to account for technological and cultural changes. The Supreme Court’s 2018 decision in United States v. Carpenter marks the most recent jurisprudential shift, as the Court departed from the well-settled reasonable expectation of privacy test to account for a new technology (CSLI records). This Note examines Carpenter’s impact on future Fourth Amendment cases, using another novel surveillance technique, hash-value matching, as a …

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …

Fictitious Commodities: A Theory Of Intellectual Property Inspired By Karl Polanyi’S “Great Transformation”, Alexander Peukert

Fordham Intellectual Property, Media and Entertainment Law Journal

The puzzle this Article addresses is this: how can it be explained that intellectual property (IP) laws and IP rights (IPRs) have continuously grown in number and expanded in scope, territorial reach, and duration, while at the same time have been contested, much more so than other branches of property law? This Article offers an explanation for this peculiar dynamic by applying insights and concepts of Karl Polanyi’s book “The Great Transformation” to IP. It reconstructs and then applies core Polanyian concepts of commodification (infra, II), fictitious commodities (infra, III), and countermovements (infra, IV) to the three main areas of …

The Market For User Data, Olivier Sylvain

Fordham Intellectual Property, Media and Entertainment Law Journal

Policymakers are today far more alert than ever before to the myriad ways in which tech companies collect and distribute consumers’ data with third-party data brokers and advertisers. We can attribute this new awareness to at least two major news stories from the past six or so years. The first came in 2013, when Edward Snowden, the former National Security Agency contractor, leaked highly classified materials that revealed the ways in which United States national security officials, with the indispensable cooperation of U.S. telecommunications companies, systematically monitored telephone conversations and electronic communications of U.S. citizens and foreign nationals. The story …

Platform Society: Copyright, Free Speech, And Sharing On Social Media Platforms, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Foreword: Rise Of The Machines: Artificial Intelligence, Robotics, And The Reprogramming Of Law, Deborah W. Denno, Ryan Surujnath

Fordham Law Review

This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center.

Recovering Tech's Humanity, Olivier Sylvain

Faculty Scholarship

No abstract provided.

A Crispr Future For Gene-Editing Regulation: A Proposal For An Updated Biotechnology Regulatory System In An Era Of Human Genomic Editing, Tracey Tomlinson

Fordham Law Review

Recent developments in gene-editing technology have enabled scientists to manipulate the human genome in unprecedented ways. One technology in particular, Clustered Regularly Interspaced Short Pallindromic Repeat (CRISPR), has made gene editing more precise and cost-effective than ever before. Indeed, scientists have already shown that CRISPR can eliminate genes linked to life-threatening diseases from an individual’s genetic makeup and, when used on human embryos, CRISPR has the potential to permanently eliminate hereditary diseases from the human genome in its entirety. These developments have brought great hope to individuals and their families, who suffer from genetically linked diseases. But there is a …

The Intuitive Appeal Of Explainable Machines, Andrew D. Selbst, Solon Barocas

Fordham Law Review

Algorithmic decision-making has become synonymous with inexplicable decision-making, but what makes algorithms so difficult to explain? This Article examines what sets machine learning apart from other ways of developing rules for decision-making and the problem these properties pose for explanation. We show that machine learning models can be both inscrutable and nonintuitive and that these are related, but distinct, properties. Calls for explanation have treated these problems as one and the same, but disentangling the two reveals that they demand very different responses. Dealing with inscrutability requires providing a sensible description of the rules; addressing nonintuitiveness requires providing a satisfying …

Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal

Fordham Law Review

Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions when it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of which data security practices …

Weighing The Admissibility Of Fmri Technology Under Fre 403: For The Law, Fmri Changes Everything -- And Nothing, Justin Amirian

Fordham Urban Law Journal

Lie detection; fMRI; Evidence; polygraph

Collateral Damages: How The Smartphone Patent Wars Are Changing The Landscape Of Patent Infringement Damages Calculations, Martin West

Fordham Urban Law Journal

This Note addresses the diverging approaches to patent infringement damage calculations. Judge Alsup of the Ninth Circuit recently took a rare approach and selected Dr. James Kearl to testify as an independent damages expert in Oracle v. Google under Rule 706 of the Federal Rules of Civil Procedure. In contrast, Judge Posner of the Seventh Circuit recently dismissed the Apple v. Motorola lawsuit finding each party failed to present adequate evidence of their respective damages claims. Judge Koh of the Ninth Circuit took yet another approach using a more relaxed level of admissibility for expert testimony relating to infringement damage …

Race In The Life Sciences: An Empirical Assessment, 1950-2000, Osagie K. Obasogie, Julie N. Harris-Wai, Katherine Darling, Carolyn Keagy

Fordham Law Review

    The mainstream narrative regarding the evolution of race as an idea in the scientific community is that biological understandings of race dominated throughout the nineteenth and twentieth centuries up until World War II, after which a social constructionist approach is thought to have taken hold. Many believe that the horrific outcomes of the most notorious applications of biological race—eugenics and the Holocaust—moved scientists away from thinking that race reflects inherent differences and toward an understanding that race is a largely social, cultural, and political phenomenon. This understanding of the evolution of race as a scientific idea informed the way that …

Critical Race Science And Critical Race Philosophy Of Science, Paul Gowder

Fordham Law Review

    Over several decades, feminist philosophy of science has revealed the ways in which much of science has proceeded from “mainstream” assumptions that privilege men and other hierarchically superordinate groups and existing socially constructed conceptions of gender. In doing so, it has produced a research program that, while rooted in the post- Kuhnian philosophy and sociology of science that has been taken up by many students of scientific method more generally, has been used to critique great swathes of modern science and to reveal both the biases of the mainstream, and the transformative potential of a science that proceeds from the …

Snap Judgment: Recognizing The Propriety And Pitfalls Of Direct Judicial Review Of Audiovisual Evidence At Summary Judgment, Denise K. Barry

Fordham Law Review

    Conflicting results in two recent police excessive force decisions by the U.S. Supreme Court—Tolan v. Cotton and Plumhoff v. Rickard—have sown confusion about the standards for summary judgment. This Note shows how the two decisions are consistent with each other and with longstanding summary judgment precedents. The key insight is that since the Second Circuit’s iconic 1946 decision in Arnstein v. Porter, appellate judges, including Supreme Court Justices, have listened to audio recordings, scrutinized artwork, and—as in the case of Plumhoff—watched video footage in order to decide for themselves whether there is a genuine issue of …

Disruption And Deference, Olivier Sylvain

Faculty Scholarship

Online video streaming applications enable users to watch over the-air broadcast programs at any time and almost on any device. As such, they challenge the pertinence of traditional video distribution law and the broadcast network system on which it is based. Congress enacted the Transmit Clause of the 1976 Copyright Act to resolve the high-stakes tussle between broadcasters and cable providers. But, today, that provision is ill-suited to resolving whether unauthorized streaming infringes on broadcasters’ copyright to perform works publicly. Its scope is ambiguous enough that judges across the country were notably divided on whether it reaches online video distribution—that …