Science and Technology Law Commons^™

Tc Heartland: It’S Time To Take Stock, Daniel Kazhdan, Sanjiv P. Laud

IP Theory

It has been a little over a year and a half since the Supreme Court issued its groundbreaking venue decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, shaking up the status quo in U.S. patent infringement litigation. The first months after TC Heartland saw a flurry of activity as litigants and courts wrestled with the impact of the decision on pending cases, pondered the true meaning of a “regular and established place of business,” and explored many other questions left by the TC Heartland decision. Eighteen months and several writs of mandamus later, it is now …

The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag

Faculty Articles

Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …

The Role Of Satellites And Smart Devices: Data Surprises And Security, Privacy, And Regulatory Challenges, Anne T. Mckenna, Amy C. Gaudion, Jenni L. Evans

Faculty Scholarly Works

Strava, a popular social media platform and mobile app like Facebook but specifically designed for athletes, posts a “heatmap” with consensually-obtained details about users’ workouts and geolocation. Strava’s heatmap depicts aggregated data of user location and movement by synthesizing GPS satellite data points and movement data from users’ smart devices together with satellite imagery. In January of 2018, a 20-year-old student tweeted that Strava’s heatmap revealed U.S. forward operating bases. The tweet revealed a significant national security issue and flagged substantial privacy and civil liberty concerns.

Smart devices, software applications, and social media platforms aggregate consumer data from multiple data …

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 …

Recovering Tech's Humanity, Olivier Sylvain

Faculty Scholarship

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.

Governing The Internet Of Everything, Scott J. Shackelford

Cardozo Arts & Entertainment Law Journal

Since the term was first coined in the late 1990s, the "Internet of Things" has promised a smart, interconnected world enabling your toaster to text you when your breakfast is ready, and your sweatshirt to give you status updates during your workout. This rise of "smart products" such as Internet-enabled appliances has the potential to revolutionize both business and society. But the smart wave will not stop with stuff with related trends such as the Internet of Bodies now coming into vogue. It seems that, if anything, humanity is headed toward an Internet of Everything. Yet it is an open …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

Artificial Intelligence Is Here, Get Ready!, Jessica G. Martz

Catholic University Journal of Law and Technology

No one is certain whether Artificial Intelligence (“AI”) will make the future a better place or make it look like an apocalyptic Hollywood blockbuster. An opinion that is emerging among experts and nation-state leaders is that the nation-states that lead in AI advancements and implementation will likely have a greater influence on and power over the world economic and national security stages. The goal of this book review is to encourage the reader to enter the conversation about the role AI will play in global society and American life because AI will influence the job market in the near future. …

The Direct Purchaser Requirement In Clayton Act Private Litigation: The Case Of Apple Inc. V. Pepper , Konstantin G. Vertsman

Catholic University Journal of Law and Technology

More than fifty years after the Supreme Court’s decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp. established the direct purchaser rule, the Supreme Court was provided with an opportunity in Apple Inc. v. Pepper to reevaluate and update the proximate cause standing requirement for litigation under § 4 of the Clayton Act. In the Supreme Court’s 5-4 decision, the majority opinion established a rule that consumers who purchase directly from a monopolist satisfy the direct purchaser standing requirement notwithstanding the internal business structure of the monopolist. This interpretation of the direct purchaser rule, along with the recent reformulation …

If Rockefeller Were A Coder, Carla L. Reyes

Faculty Journal Articles and Book Chapters

he Ethereum Decentralized Autonomous Organization (“The DAO”), a decentralized, smart contract-based, investment fund with assets of $168 million, spectacularly crashed when one of its members exploited a flaw in the computer code and stole $55 million. In the wake of the exploit, many argued that participants in the DAO could be jointly and severally liable for the loss as partners in a general partnership. Others claimed that the DAO evidenced an entirely new form of business entity, one that current laws do not contemplate. Ultimately, the technologists cleaned up the exploit via technological means, and without engaging in any further …

Crashworthy Code, Bryan H. Choi

Publications

Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb.

Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the …

The Right To Explanation, Explained, Margot E. Kaminski

Publications

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 …

Lessons From Literal Crashes For Code, Margot Kaminski

Publications

No abstract provided.

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

Publications

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 …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Should Robots Prosecute And Defend?, Stephen E. Henderson

Faculty Articles

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge …

Creating A National Data Privacy Law For The United States, Shaun G. Jamison

Cybaris®

No abstract provided.

Finding Prejudice From Lost Esi: An Analysis Of Courts’ Standards Under Amended Federal Rule Of Civil Procedure 37(E), Thomas J. Joyce

Oklahoma Law Review

No abstract provided.

The Promise And Limitations Of Artificial Intelligence In The Practice Of Law, W. Bradley Wendel

Oklahoma Law Review

No abstract provided.

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Oklahoma Law Review

No abstract provided.

Minding The Gaps In Lawyers’ Rules Of Professional Conduct, Anita Bernstein

Oklahoma Law Review

No abstract provided.

The Future Is ̶B̶R̶I̶G̶H̶T̶ Complicated: Ai, Apps & Access To Justice, Emily S. Taylor Poppe

Oklahoma Law Review

No abstract provided.

When Robots Make Legal Mistakes, Susan C. Morse

Oklahoma Law Review

No abstract provided.

Technologically Competent: Ethical Practice For 21st Century Lawyering, Heidi Frostestad Kuehl

Journal of Law, Technology, & the Internet

The impact of technology and social media on litigation and the infiltration of technology into the U.S. and world markets are undeniable. Currently, ABA Model Rule 1.1 and its Comment include a broad requirement of technological competence for ethical practice. This Article will identify the obligations of technological competence embodied in Model Rule 1.1 and examine the current cases and ethical decisions that reveal the evolving national and state-specific technological competence standards. After reviewing the timeline of cases and current scholarly literature, this Article proposes a more specific ethical standard for baseline knowledge of various technologies according to current practice …

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Cleveland State Law Review

Blockchain is about one-third math and two-thirds game theory. The math runs on silicon processors. The game theory runs on grey matter. Earlier in this symposium, the last panel essentially asked, "What's different about blockchain and its relationship to humans?" That will be our focus: What is the right relationship between technology and the community that builds it? And, why would we care?

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit …

Commuting To Mars: A Response To Professors Abraham And Rabin, Ryan Calo

Articles

The remarks that follow are less about the particular wisdom of manufacturer enterprise responsibility (MER) for driverless cars, and more about the limits of legal scholarship in grappling with unfolding technologic change. The contingency of technology and its social impacts caution against sweeping interventions. And the role of law and technology scholarship—as opposed to legal scholarship that touches upon technology—is arguably to recognize the unique challenges that arise at this intersection.

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …