Science and Technology Law Commons^™

A Framework For Interpreting Emojis In Legal Contexts, Anne Merritt

Dalhousie Journal of Legal Studies

In the 2023 case of South West Terminal Ltd. v. Achter Land & Cattle Ltd., a Saskatchewan court found that a thumbs-up emoji, as a standalone item of communication, constituted the acceptance of a contract between a buyer and seller. The trial judge noted that such communication was “the new reality in Canadian society” for which courts should be prepared to interpret novel units of language arising in the digital age. However, an analysis of recent Canadian cases involving emojis shows that courts have not been prepared, with inconsistencies in how emojis are represented in evidence, how they are …

Science And Causality In Technology Litigation, J. Nathan Matias, Jonathon W. Penney

Articles & Book Chapters

No abstract provided.

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

The Brain Is In Your Court: Evaluating Intellectual Property Infringement Audience Through The Lens Of Neuroscience, Madyson Kent

Washington and Lee Law Review

To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.

Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the …

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

The Evidentiary Implications Of Interpreting Black-Box Algorithms, Varun Bhatnagar

Northwestern Journal of Technology and Intellectual Property

Biased black-box algorithms have drawn increasing levels of scrutiny from the public. This is especially true for those black-box algorithms with the potential to negatively affect protected or vulnerable populations.1 One type of these black-box algorithms, a neural network, is both opaque and capable of high accuracy. However, neural networks do not provide insights into the relative importance, underlying relationships, structures of the predictors or covariates with the modelled outcomes.2 There are methods to combat a neural network’s lack of transparency: globally or locally interpretable post-hoc explanatory models.3 However, the threat of such measures usually does not bar an actor …

Digital Habit Evidence, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Northwestern Journal of Technology and Intellectual Property

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Washington and Lee Law Review

Issues of racial inequality and violence are front and center today, as are issues surrounding artificial intelligence (“AI”). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about …

Adverse Cyber Operations: Causality, Attribution, Evidence, And Due Diligence, Hans-Georg Dederer, Tassilo Singer

International Law Studies

Adverse cyber operations against States are on the rise, and so are the legal challenges related to such incidents under public international law. This article will not delve into already intensely debated problems of classification, such as whether adverse cyber operations constitute “armed attacks” or “use of force.” Rather, the article will focus on causality and attribution with special regard to problems of evidence. In particular, the article will elaborate on the applicable standards of proof to be met by the victim State when submitting, or having to submit, evidence to justify self-defense or countermeasures against the State of origin. …

Internet (Re)Search By Judges, Jurors, And Lawyers, H. Albert Liou, Jasper L. Tran

IP Theory

How can Internet research be used properly and reliably in law? This paper analyzes several key and very different issues affecting judges, jurors, and lawyers. With respect to judges, this paper discusses the rules of judicial conduct and how they guide the appropriate use of the Internet for research; the standards for judicial notice; and whether judges can consider a third category of non-adversarially presented, non-judicially noticed factual evidence. With respect to jurors, this paper discusses causes of and deterrents to jurors conducting Internet research during trials; and the recourse available to parties who are adversely impacted by such behavior. …

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye

Faculty Scholarship

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to …

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye

Faculty Scholarship

This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact.

The article explains how the courts have moved from a position of skepticism of the ability of …

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Cardozo Law Review de•novo

In this Article, I explain my conclusions in Aggregating for Accuracy in non-mathematical terms, and underscore certain implications with respect to class action litigation and considerations in light of the U.S. Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. I begin by describing the building blocks of my analysis—the concepts of reliability and accuracy in the law.

The Past, Present, And Future Of Predictive Coding, Matthew G. Kenney

Florida A & M University Law Review

Electronic discovery, or e-discovery, refers to the discovery of electronically stored documents and images.' Examples of e-discovery related documentation would include email, digital versions of paper documents (e.g. MS Word, PDF, Excel, and PowerPoint), social media postings, digital photos, Global Positioning System data, and content within computerized databases, etc. Digital data stored on computers, smartphones, tape drives, hard-drives, portable digital storage devices and the like would fall under the domain of e-discovery. Collecting and sorting massive amounts of electronically stored data presents both opportunities and challenges for lawyers.

For context: In 2015, electronic discovery was a $10.2 billion global industry. …

Fmri And Lie Detection, Anthony D. Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Some studies have reported the ability to detect lies, with a high degree of accuracy, by analyzing brain data acquired using functional magnetic resonance imaging (fMRI). But is this new technology ready for its day in court?

This consensus knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience takes a closer look at the potential and pitfalls of fMRI lie detection techniques, providing insight into the areas of the brain involved in lying, the impact of memory on deception, how countermeasures may foil our efforts to detect lies, and factors that can create cause for concern about …

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin

Chicago-Kent Law Review

What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …

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 …

Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Redesigning The Science Court, Justin Sevier

Maryland Law Review

No abstract provided.

Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

Faculty Scholarship

It has become increasingly clear that implications for criminal justice – both negative and positive – emerge from the rapid, important, and challenging developments in cognitive neuroscience, the study of how the brain thinks. Two examples will illustrate.

First, lawyers are ever more frequently bringing neuroscientific evidence into the courtroom, often in the forms of testimony about, and graphic images of, human brains. This trend has produced many new challenges for judges as they attempt to provide fair rulings on the admissibility of such technical evidence, consider its proper interpretation, and assess whether the probative value of such testimony may …

The Admissibility Of Cell Site Location Information In Washington Courts, Ryan W. Dumm

Seattle University Law Review

This Comment principally explores when and how a party can successfully admit cell cite location information into evidence. Beginning with the threshold inquiry of relevance, Part III examines when cell site location information is relevant and in what circumstances the information, though relevant, could be unfairly prejudicial, cumulative, or confusing. Part IV provides the bulk of the analysis, which centers on the substantive foundation necessary to establish the information’s credibility and authenticity. Part V looks at three ancillary issues: hearsay, a criminal defendant’s Sixth Amendment confrontation rights, and the introduction of a summary of voluminous records. Finally, Part VI offers …

Trial By Theory: A Response To Acharya's "Law's Treatment Of Science: From Idealization To Understanding", Gary Edmond, Kent Roach

Dalhousie Law Journal

Adopting a pragmatic and empirically sensitive approach to the use of forensic science and medicine, this essay defends Edmond and Roach's "AContextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence." The authors reiterate their concerns about idealized approaches to science and expertise and question the utility of philosophically-driven and essentialist models of science for legal practice. In detail the essay explains why privileging process over outcomes in the criminal process (andeven perpetuating the dichotomy) is misguided. The authors affirm the importance of factual accuracy and the socio-institutional illegitimacy generated by wrongful convictions. Drawing upon recent inquiries …